State v. Lister

121 Kan. 524 | Kan. | 1926

The opinion of the court was delivered by

Mason, J.:

Arthur Lister appeals from a conviction on a charge of having intoxicating liquor in his possession. His contention is that the evidence did not sustain the verdict. There was testimony tending to show these facts:

A resident of Soldier bought a bottle of whisky at night of a man who drove him to a point about half a mile west of that town, got out of the car, went through a hole in the hedge alongside the road and came back with the bottle. The sheriff the same night got the bottle and part of the liquor from him. He told the sheriff where he got the liquor but did not tell him of whom he bought it. The sheriff and two other officers the same night drove in two cars from Soldier to a point beyond the hole in the hedge, parked their cars, came back to the hole through a cornfield on the other side of the road, and hid themselves near by. Presently two cars drove up from the direction of Soldier and stopped, turning out their lights. The defendant got out of the first car and with a man from the second car — his brother — walked through the hole in the hedge. The defendant came back through the hole and seeing the sheriff’s party said, “What do you fellows want?” The sheriff asked him what he was doing there, and he made no answer. He was placed under arrest. There were fresh tracks resembling the defendant’s from the hole in the hedge to a place about a rod away where twenty-two pint bottles of liquor were found.

At the trial the defendant testified that his brother, who was driving in front of him, stopped his car; that he drove around his brother’s car, stopped and came back to see what was the matter and was then .arrested. He said: “The officers are mistaken when they say I came through the hole in the hedge.” His brother and the third member of the party as witnesses each denied ownership of the liquor, as of course the defendant did also. The brother testified that he “was in employ of Anti-Saloon League for some time and would have arrested his own brother had he seen any liquor.” The defendant on cross-examination stated that he had been arrested once before on a whisky charge and was cleared by a jury; that he was then under arrest on a like charge in an adjoining county.

We regard this evidence as sufficient to take the case to the jury.

The judgment is affirmed.