34 Kan. 582 | Kan. | 1886
The opinion of the court was delivered by
H. Guettler was prosecuted before the district court of Dickinson county for violating the prohibitory liquor law. The information contained five counts, and a verdict of guilty was given under each of them. Accordingly, the court rendered judgment upon each conviction, sentencing the
The principal complaint of the appellant is, that the election of the county attorney as to the particular transaction or sale on which he would rely for a couviction was not sufficiently definite and certain. When the testimony of the state had been offered, the defendant moved the court to require the state to make an election under each count. The motions were granted, and elections were accordingly made. The defendant was not satisfied with the elections as made, and asked the court to require the county attorney to make them more certain, which motion was overruled. While exception was taken to the election under each count, those made under the first,' fourth and fifth seem not to be much questioned by the defendant in argument, and when taken in connection with the testimony must be regarded as sufficiently definite. The election made under the second count was in this language: “I rely for conviction of the defendant under the second count in the information on the first sale to George Hubbard, as testified to by George Hubbard.” The testimony of George Hubbard, so far as it relates to this question, is as follows:
“ I have got beer there of the defendant several times. The first time I got beer there I bought two dollars’ worth of tickets. He would not let me have any kind of drink unless I first bought a ticket. It was only five minutes after I got the ticket until I got the beer. I could get beer or any kind of drink on my ticket there, from a single glass up to the amount of my ticket. I got whisky sometimes on my ticket. Not very often. I generally got beer.”
The objection to the sufficiency of the testimony is not good, nor can the objection to the instructions be sustained; but we do not think that these points require particular attention here.
The judgment of the district court will therefore be affirmed as to the convictions under the first, second, fourth and fifth counts of the information, and the judgment of conviction under the third count will be reversed, and the cause remanded for a new trial thereon.