3 Kan. App. 95 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
This is a prosecution for alleged violations of the prohibitory liquor law of this state. The information contained 11 counts, in the first 10 of which the defendant was charged with the illegal sale of intoxicating liquors, while in the eleventh count he was charged with keeping and maintaining a place where intoxicating liquors were illegally sold and kept for illegal sale, and where persons were permit-
“In determining the guilt or innocence of the defendant on the first 10 counts, you have the right to consider all the evidence introduced in the case, and all unlawful sales made by him 6r any one authorized by him, including those, given in evidence on which the state has not relied for conviction,- and from such evidence determine whether or not the defendant is guilty of making the sales on which the state has elected to rely; but you cannot convict the defendant on sales other than those on which the state has elected to rely.”
The defendant duly excepted to the ruling of the court on his objection to the instruction so given, and the jury rendered a verdict of guilty on the first and eleventh counts, upon each of which the defendant was adjudged to pay a fine of $200, and be committed to the county jail for a period of 60 days. Under the ruling of this court in The State v. Marshall, 2 Kan. App. 792 (44 Pac. Rep. 49), the Court committed prejudicial error in giving the instruction above quoted, and for this reason it will be unnecessary to consider some of the questions raised by the appellant in support of, his contention that a new trial should have been awarded on the first count of the information.
The evidence is clear and uncontradicted that the building described in the information was a place where intoxicating liquors were unlawfully sold and kept for unlawful sale, and where persons were permitted to resort for the purpose of drinking intoxica
The state concluded the introduction of its testimony at the noon hour, and its counsel then announced that they would be prepared, immediately upon the convening of the court at 1: 30 p. m., to announce the particular sales upon which the state would rely for a conviction on each of the counts charging illegal sales, which was accordingly done. During the afternoon, witnesses were examined on'behalf of the defendant, and rebutting evidence was introduced by the state. The plaintiff made its opening argument and the defendant’s counsel had also argued the case before the jury before the hour of adjournment; The court again convened at 7 : 30 p. m., at which time the defendant asked permission to reopen the case for the purpose of introducing the testimony of one Turner, to rebut the evidence of a witness for the state by the name of Brown, who testified that Turner was present at the time the defendant made the two sales of beer above referred to-; and it was also desired to show by this witness that BroAvn, who testified to the sales of beer, had stated that he was to receive a fee for each conviction of the violation of the prohibitory-liquor law which he was instrumental in securing. This application was overruled, and the defendant insists that the court abused its discretion in such ruling. Brown’s testimony had all been given in before the noon adjournment of court. No subpoena was issued for this witness, and the record shows that he was in the city all the afternoon. The defendant himself had testified that he clid not make the sales to which the witness Brown had testified, and several witnesses were also introduced by the defense to impeach the
It follows from what has been said that the judgment must be reversed as to the first count, and affirmed as to the eleventh count of the information. The case will be remanded for further proceedings in accordance with the views herein expressed.