State v. Ellvin, 51 Kan. 784

State v. Ellvin

51 Kan. 784 | Kan. | 1893

The opinion of the court was delivered by

Johnston, J.:

11 appeal — death review of juagOn October 7, 1892, Neis Ellvin was convicted of the unlawful sale of intoxicating liquors, and the judgment of the court was 45' days imprisonment in the county jail, and that he should pay a fine of $250 and costs. He appealed to the supreme court, and obtained a stay of the execution of the judgment by giving bond as provided in § 287 of 4he criminal code. Before the appeal was heard, and on March 26, 1893, the appellant died. Counsel for the appellant filed a motion for dismissal, but, upon the suggestion of the death, the administratrix of the estate of the deceased was brought in as a party, in order that the liability of the estate for the costs of the prosecution might be determined. It is still insisted that no inquiry can be made, nor any action taken in the case, except to note the fact of abatement and make an order of dismissal. This question was presented to the court in the case of The State v. Fisher, 37 Kas. 404, where it was decided that the death of the defendant did not abate or destroy the judgment for costs. The judgment was stayed, and, in a certain sense, suspended by the appeal, but a dismissal of the same ordinarily leaves the judgment unimpaired and in full force. While the death of the appellant necessarily ends further prosecution and prevents a recovery of the fine imposed as punishment, it does not relieve his estate from liability for the costs which had passed into judgment during his lifetime. It has been determined that the costs adjudged against one convicted of crime do not constitute a part of the punishment *790inflicted upon him, and this although the judgment may provide that he be imprisoned in the county jail until such costs are paid. It was further held that an unconditional pardon would not relieve the party from liability for costs adjudged against him. It was said that

“Such a judgment is merely a means of enforcing the legal obligation resting upon the defendant to pay the costs which he, by his original wrongful act and his subsequent acts, has caused to be made, and which have accrued in the prosecution subsequent to the act for which he is punished; and these costs have not accrued to the public merely, but have accrued to individuals, and are given to such individuals as compensation for their services performed in the prosecution; and the right of these costs, and the means for their collection, are vested rights, which cannot be disturbed or abridged or lessened by any pardon which the governor may grant.” (In re Boyd, 34 Kas. 570.)

The costs, although incidental to the punishment inflicted, constitute a separate civil liability in favor of the parties to whom they are due, and from which the estate of the defendant cannot be relieved except by a reversal of the judgment. A review proceeds here at the instance of the administratrix, and for the benefit of the estate. In case of a reversal, of course no new trial can be had, and necessarily no further liability for costs can arise.

2‘ affidavits-information-recognizance.

The first ground urged for a reversal of the judgment is, that the affidavits which were used as a basis for the information were informal and insufficient. The averments contained in the information sufficiently describe the offense, and it is verified by the county attorney upon information and belief; and the objection made to the affidavits, which were taken by and verified before the deputy county attorney and filed with the information, have become immaterial. After the arrest of the defendant upon the warrant, he voluntarily gave a recognizance and obtained a discharge from custody. This was done before any objection to J . . I -, , the warrant or the information was made, and the ' defendant has thereby waived all right to complain of defects or irregularities in the affidavits and in the

*791issuance of the warrant. (The State v. Bjorkland, 34 Kas. 377; The State v. Longton, 35 id. 375; The State v. Ladenberger, 44 id. 261; The State v. Tuchman, 47 id. 726.)

5' teins'radiotf’ It is next contended that the testimony is insufficient to sustain the conviction. The information contained 26 counts, all charging unlawful sales of liquors, except the last one, which charged the keeping of a nuisance. Although there was much testimony tending to show numerous unlawful sales by Ellvin, the jury found him guilty only upon the third count, of a sale to William Ferguson, and upon that count the state elected to rely for a conviction upon the third sale made to Ferguson. It was charged that the sales to Ferguson were made in 1891, and he testified to obtaining from 4 to 10 bottles of beer from Ellvin during the summer of that year. His testimony, although indefinite in some respects, shows that he purchased beer from the appellant, a bottle at a time; that there were three or more purchases, and that the price paid was 25 cents for each bottle. He was unable to state all the details and circumstances attending each sale that was made, but we think there was sufficient testimony tending to show the sale to Ferguson relied on for conviction, and the finding of the jury thereon, sanctioned as it has been by the trial court, ends the controversy upon that point.

3' t¡SetI™0ti011 It is next urged, that the court erred in imposing all of the costs of the entire trial upon the defendant. It appears that some of the witnesses were called and the costs accrued in an attempt to sustain charges in the information which were subsequently dismissed, or upon which the defendant was found not guilty. The defendant can only be held liable for the costs that arose upon the trial of the charge upon which he was convicted, and should not be required to pay costs accruing under the counts upon which he was acquitted. (The State v. Brooks, 33 Kas. 708.) This objection is not available at this time, for the reason that no motion was made in the district court to *792retax the costs, nor any request made to separate those which he should recover from those which he should pay. (In re Lowe, 46 Kas. 255; In re Gilson, 34 id. 644.) As was said in the case last cited, “Doubtless upon a motion to retax the costs the court will correct the judgment.”

4 continuance refused — -no abuse of discretion. The only matter left for consideration is, that the defendant was absent from the court during a portion of the trial. Near the end of the trial, the defendant became unfit to attend court by reason of the excessive use of intoxicating liquors, voluntarily taken by him, and an oral application for a continuance of the cause was made. An adjournment was taken for half of a day, when it was found that the defendant was still absent, owing to intoxication, or its effects. The court then concluded to proceed with the trial, and denied the adjournment. The presence of the defendant at a trial for misdemeanor is not indispensable. (Crim. Code, §207; The State v. Baxter, 41 Kas. 516.) In this case the defendant was Pers°ually present when the judgment of the court was pronounced. In view of the voluntary disability of defendant and other circumstances, we cannot say that there was an abuse of discretion in denying the application.

We see no grounds which would justify a reversal, and hence the judgment for costs must stand.

All the Justices concurring.