114 Kan. 426 | Kan. | 1923
The opinion of the court was delivered by
Harry Kane appeals from a conviction for the violation of the prohibitory law — upon two counts for the sale of intoxicating liquor and upon one for having it in his possession.
The article for the sale of which the defendant was convicted was wild cherry extract, a preparation put up by the manufacturers for use in cooking. He admitted that he kept and sold it, his defense being that it is not intoxicating liquor within the meaning of the statute. The evidence was that he is a grocer carrying a stock of $10,000 to $15,000, and employing from seven to ten clerks; that the cherry extract was kept with other extracts without concealment, being sold in four-ounce bottles for fifty cents each.
1. The count charging sales alleged that they were made to Hun Woods, on March 18 and 21, 1922. The defendant complains that after Woods had testified to purchases made by him ten other witnesses were permitted to testify that they too had purchased at various times this cherry extract, and that they had drunk it as a
The suggestion is made that there was no evidence that the .extract which the witnesses referred to bought was the same as that sold to Woods. There was room for a reasonable inference to that effect from the testimony of the defendant himself as well as that of others.
2. Concerning the testimony of these ten witnesses the court gave the following instruction, of which the defendant complains:
“There is evidence before you of alleged sales of cherry extract to several other persons at or about the time of the sales complained of in the second and fourth counts in the information. This evidence is not for the purpose of proving the sales claimed to have been made in those counts, but is competent for the purpose of proving the knowledge of the defendant with reference to the character of the said cherry extract as an intoxicating liquor, and the purpose for which the alleged purchasers bought the same, and for the further purpose of showing the effect upon a person using the same as a beverage, and for these purposes only.”
The jury had been told in the preceding instruction that if the cherry extract was intoxicating within the meaning of the statute “then it would be no defense that the defendant may have sold it in good faith or without any knowledge that Hun Woods intended to or did use such extract for beverage purposes.” Although ignorance on the part of the defendant that Woods intended to use the extract as a beverage would not constitute a defense the fact in that .regard might have some bearing upon the actual character of the liquor. At all events evidence was admissible upon that issue which tended to show that the liquor was bought and used as a beverage and produced intoxication.
3. It is contended that the conviction should be set aside on the ground that the evidence of the food analyst already referred to showed that the extract was a legitimate article of commerce. The fact that various tinctures, extracts and essences are manufactured and ordinarily sold for other purposes than as a beverage does not
4. This question was put by the attorney for the defendant to a salesman for a wholesale grocer called as a witness in his behalf: “I will ask you to state if you know whether or not this has been sold over the state of Kansas with other extracts, as an extract?” He answered “Absolutely.” The state objected on the ground that the evidence was incompetent, irrelevant and immaterial and a conclusion of the witness, and the objection was sustained. Complaint is made of the ruling. If the evidence was admissible it was not important enough to constitute reversible error, especially in view of the testimony already referred to which was given by the food analyst as a witness for the state.
5. A final complaint is of the refusal to give this instruction asked by the defendant:
“In considering the evidence in this case, you may and should take into consideration the nature of the business the defendant is engaged in, the location of his business, the character of his trade, the size of his stock, places in his store where the various articles of merchandise are kept and displayed, the frequency or infrequency with which witnesses may have purchased the article referred to in the evidence as ‘cherry extract,’ the lawful purposes for which said extract might be used, and the probability of its being used for a proper purpose by the persons purchasing it is indicated by the frequency of the purchase, as you may find the facts beyond a reasonable doubt.”
The instructions approved in The State v. Wilson, supra, and quoted in the opinion in that case were given and we think fairly presented the issues. Granting that it was proper for the jury to take into consideration all the matters recited in the requested instruction it may be presumed that they considered all the evidence submitted and the refusal to direct their attention specifically to these particular items affords no basis for a reversal.
The judgment is affirmed.