86 Kan. 848 | Kan. | 1912
The opinion of the court was delivered by
A complaint was filed before a justice of the peace charging appellants jointly with running, operating and maintaining a gambling house, and setting up and maintaining gambling devices in it, and further charging appellants with gaming in a common gambling house, and with gambling. At a preliminary hearing in the justice court the state introduced its evidence, and then the appellants filed a motion to discharge them on the ground of insufficiency of the evidence. After the argument of this motion the justice announced an adjournment and that he would take the matter under advisement for twenty-four hours. When that time arrived the appellants did not appear before the justice, and, without further testimony, he overruled the motion and decided upon the evidence that there was probable cause to believe the appellants to be guilty of the offenses charged and bound them over to the district court. An information containing three
A preliminary examination was held, which was attended by appellants, and wherein the state intimduced its testimony, from which the committing magistrate determined that an offense had been committed and that there were grounds for believing that appellants were guilty. Under the statute appellants were entitled to have their witnesses examined, if any they had (Crim. Code, § 49), but they did not ask to have any sworn and examined and were not even present at the reconvening of the justice court. What their purpose was in absenting themselves from the courtis not'stated, but if they had appeared they would doubtless have had an opportunity to present any testimony they had. When the magistrate decided that the testimony was sufficient to bind over and the appellants did not offer any testimony the magistrate was warranted in committing them for trial. They had given bonds for their appearance, but they could not defeat the proceeding by neglecting to appear at the time to which the court was adjourned. Their absence was, in effect, a waiver of the right to offer testimony in their own behalf. The examination that was conducted, in which the evidence of the state was presented, fairly acquainted them with the charge upon which they were to be prosecuted, and this is the purpose of such an examination. It has been decided that “when the question is raised by a plea in abatement, as in the present case, we think the only
It is next contended that appellants were allowed but six peremptory challenges, whereas each was entitled to that number under the ruling in The State v. Durein, 29 Kan. 688. While counsel for appellants insists that they were deprived of their rights in this respect the record is against them. In the judgment of the court it is said, in connection with the recital of the impaneling of the jury, that “said jury having been accepted by both the plaintiff and the defendants and each of them having exercised six of the peremptory challenges allowed to them .by law, and no request being made for any additional challenges, and the following jurors, to wit,” etc., proceeded to try the case. We must accept the record as it is written, and appellants, having been accorded all the challenges to which they were entitled, and no others having been made or requested, there is no ground of complaint on this score.
There is complaint that the information charged several offenses but no motion to quash on the ground of duplicity was filed. In the second count there was a charge of a felony under section .239 of the crimes act (Gen. Stat. 1909, § 2725) and a misdemeanor under section 340a (Gen. Stat. 1909, §2735). Distinct substantive offenses should, of course, ,be charged in separate counts, and doubtless if proper objection had been made it would have been sustained. The uniting of offenses of the same character in one count is not a ground for reversal unless there is a timely challenge of the defect by an appropriate motion.
The testimony, although its sufficiency is challenged, •appears to be sufficient to sustain the charge that appellants not only gambled but were operating a gambling house. The proof that there was gambling in the house with cards and dice was abundant and there is •sufficient to show that Black as well as Justus was engaged in operating it. The verdict .points out, with reasonable certainty, the offense of which each was convicted, and the judgment is affirmed.