40 Kan. 87 | Kan. | 1888
Opinion by.
The defendant was arrested, charged with the unlawful selling of intoxicating liquors, upon the complaint of Aldus Sharp. The complaint is upon five counts. The defendant was convicted before a justice of the peace upon count two in the complaint, and acquitted as to counts one, three and four, count five being dismissed; from which conviction he appealed to the district court, where he was again convicted. The first complaint of this conviction is, that the defendant was convicted in the court below upon the testimony of one 'Forbes, and in the district court, upon a sale to one Warren Jackson; and for this reason defendant insists that he was deprived of having a fair trial, in not being informed of the specific offense charged against him, and that such conviction was in violation of §10 of the bill of rights. The complaint upon which the defendant was convicted was a general one, and did not specify the character of the liquor sold, or the person to whom sold. This was a trial in the district court de novo, as if no trial had ever been had. The state might introduce any evidence competent to establish this charge, although the conviction had been had before the justice of the peace upon entirely different testimony. The state was not bound by what it did in the court below. This court said, in The State v. Forner, 32 Kas. 283:
“As the trial in the district court upon appeal must be de novo, the defendant took his appeal with a full knowledge of the risk thereof, and of all the possible consequences; and the state had the right to offer evidence tending to establish the
But counsel insist that even if this is true, yet the complaining witness at the time of filing the complaint must have had in view this specific sale upon which the defendant was convicted; and if he did not have that knowledge, then the defendant, under the authority of The State v. Brooks, 33 Kas. 708, must be discharged. The distinction between this case and the case cited is, that the defendant in that case was tried and convicted in the district court upon a sale not known to prosecuting witness, and not charged in the complaint; and in this, while the defendant was convicted upon the testimony of a sale to Forbes, before the justice of the peace, yet it was shown that while the prosecuting witness intended to charge a sale to Forbes, yet he also had knowledge, and gave information of that knowledge to the county attorney at the time of filing the complaint, of a sale to Warren Jackson, and gave his name along with the names of other witnesses. Having this knowledge at the time of filing the complaint was sufficient to enable the state to use the testimony of Warren Jackson in securing the conviction in the district court. Sharp had heard Jackson say that he had bought intoxicating liquors —the particular kind sworn to by Jackson being phosphate lemon rye — of the defendant, and he had this knowledge at the time of filing the complaint. Mr. Justice VALENTINE, in The State v. Brooks, said:
“If, however, he had in contemplation a larger number, then the state should have been required to elect at the proper time as to which of the offenses and under which counts it would rely for a conviction. If the complaining witness had in contemplation fifty or a hundred or more violations of law, as possibly he had, the prosecution should at the proper time have selected some four of them, and relied upon these four' for a conviction, and not have selected some supposed offense of which the complaining witness had no knowledge or thought.”
The state in this case, upon motion of the defendant, made its election, and relied upon the sale to Warren Jackson for conviction. In this we see no error.
The defendant saved his exceptions to the first three instructions' given by the court, and his objection to these instructions is, that the court submitted to the jury the question as to whether or not the sale to Warren Jackson was a sale charged in the information. The objection is made that this was a jurisdictional question, and must be passed upon by the court, and should not be .submitted to the jury. This claim we do not think well taken. Jurisdictional questions of this character may be submitted to the jury as well as other questions of fact. It was a question of fact, as to whether or not
The last objection urged by counsel is, that phosphate lemon rye is not an intoxicating liquor as contemplated by the prohibitory law, as interpreted by this court in Intoxicating-Liquor Cases, 25 Kas. 752. The evidence offered by the defendant attempted to show that this was a medical compound, designed as a medicine. It was also shown by the defendant that it contained about 23 per cent, of alcohol. The quantity of alcohol does not necessarily determine whether or not a liquor is intoxicating as contemplated by the prohibitory law. The object for which it is used, and its effects when used, must aid in determining whether or not its sale is prohibited. In this case it was clearly shown that this compound, whatever its ingredients may have been, was sold and used as a beverage, and that it produced intoxication similar to the known effects of whisky and other intoxicating liquors. This we think was sufficient to establish its character and restrain its sale.
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.