8 Kan. App. 257 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
The appellant, Arch. Lord, was convicted under section 39, chapter 101, General Statutes of 1897 (Gen. Stat. 1889, ¶" 2533), of keeping and-maintaining a common nuisance. The section under which he was prosecuted reads :
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of any of the provisions of this act, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this act, are hereby declared to be common nuisances, . ■. . and the owner or keeper thereof shall upon conviction be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than one hundred dollars*259 nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than ninety days.”
The appellant'was sentenced to thirty days in jail and to pay a fine of $100 and costs, and to stand committed until the fine and costs were paid, from which conviction and sentence he appeals. He contends that the judgment of the trial court should be reversed for three reasons, which we will consider in the order presented.
First, it is claimed that the verdict of the jury is not supported by the evidence and is contrary thereto. The evidence shows that the building designated in the complaint consisted of two rooms on the first floor, and a basement. The front room on the first floor was used as a cigar store, the rear room as a billiard hall. In the basement were a counter or bar, made of planed boards, a beer pump, some glasses, a couple of gambling tables, some chairs, and beer. There were two persons behind the bar supplying patrons with beer which was drunk on the premises. The two men behind the counter, or bar, on the afternoon of Tuesday, the-day of September, 1897, sold and dispensed beer over the counter, which was drunk by fifteen or more persons. The basement room was therefore a place where intoxicating liquors were sold to customers ; where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage; and was fitted up with the usual paraphernalia of a “joint,” or saloon, including a bar, with beer pump attached, from which beer was dispensed to numerous customers who were buying and drinking it. The contention is made that the appellant was not the person who sold the beer, therefore not the keeper of the place. The basement
The contention is further made that the beer sold was not intoxicating. • The witnesses Pond and McFall
It is further contended by counsel, that as the defendant was acquitted under the counts of the information charging sales to Pond and McFall, he could not be found guilty of the offense of keeping and maintaining a nuisance. Our supreme-court has de
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of any provisions of this act, or where persons are permitted to resort for the purpose of drinking intoxi-' eating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this act, are hereby declared to be common nuisances. . . .”
It was not necessary under the nuisance count of the information in this case for the state to prove any. sales. In The State v. Reno, 41 Kan. 684, 21 Pac. 807, the court said :
“In cases like the present, a showing of a mere keeping of intoxicating liquors for sale, or a keeping of a place ‘ where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage,’ is sufficient, under the statute, to render the place,, where the liquors are kept or where the persons are permitted to resort a nuisance, and to render the keeper thereof guilty of keeping a' nuisance.”
The verdict of the jury is sustained by the evidence.
It is next urged that the verdict of the jury is contrary to law. It is here contended that the evidence
The contention is further made by the defendant that the place described in the information was a temporary one, in operation for only about half an hour, and therefore was not a nuisance as contemplated by the law, and that the defendant could not be convicted of keeping and maintaining the place for that short length of time. We are unable to see any force in this argument. If a party can operate a saloon or “joint” for thirty minutes without violating the prohibitory law, by what force of reasoning
From what we have said it follows that the motion for a new trial was properly overruled.
The judgment is affirmed.