State v. Lund

| Kan. | Jul 15, 1892

The opinion of the court was delivered by

Johnston, J.:

This is an appeal from a conviction for unlawfully selling intoxicating liquor. In an information containing a single count, it was charged that Walter Lund —

“On or about the 15th day of May, 1891, and on divers other days and times between that time and the time of the filing of this information, at the city of Harper, in the county and state aforesaid, did then and there unlawfully keep the place known and described as the back part of the north room of the opera house, situated on lot 9, block 21, in the city of Harper, Harper county, Kansas, and said . and Walter Lund, with the knowledge and consent of said . . . agent of the owner of said buildings and said place, and then and there and said other days and times unlawfully did sell, barter, and give away, and keep for sale, barter, and use, intoxicating liquors, in violation of the act of the legislature of the state of Kansas, etc., to the common nuisance of the people of the said state of Kansas.”

It was assumed by both court and counsel that the information charged two distinct offenses, namely, the unlawful selling of liquors, and the keeping of a common nuisance. At the trial, testimony was offered tending to show numerous sales of liquor during the year 1891, at the place named in the information. After the evidence of the state was submitted, the defendant asked the court to require the state to elect on which offense charged in the information the state would rely for a conviction. The request was granted by the court, and the state elected to rely upon a sale of intoxicating liquors. The defendant then moved the court to require the state to elect on which particular sale claimed to have bean proven it would rely for a conviction. The motion was granted, and the state elected to rely “upon a sale of beer made to C. S. Lloyd and to W. H. H. Smith in the month of May, 1891.” The defendant then requested that the state be required to indicate one or other of the sales made to C. S. Lloyd and to W. H. H. Smith in May, 1891, on which it would rely for a conviction, which request was denied by the court. The defendant then asked the court that the state be required to make its election more definite and certain, and that it be required to state on what particular sales made to C. S. Lloyd and what particular sales made to W. H. H. Smith the state would rely for a conviction in the case. This request was granted by the court, and the state then designated the sales made “to Dr. C. S. Lloyd on or about the 20th of May, 1891, and upon the sales made to W. H. H. Smith and Dr. C. S. Lloyd from the 9th to the 11th of May, 1891.” A further effort was made by the defendant to have the election made more definite and certain, and to have the election confined to a single sale, but each request was denied.

The court instructed the jury that the defendant was charged with the unlawful sale of intoxicating liquors, and that he could not be found guilty of any other or different sale than those upon which the state had elected to rely for a conviction. They were further advised that the state had elected to rely upon the illegal sale of beer to Doctor Lloyd on or about May 20, 1891, and upon the illegal sale of beer to Doctor Lloyd and to W. H. H. Smith between the 9th and 11th of May, 1891, and that, if the jury found the defendant guilty, they must designate in their verdict upon which sale or sales they found the defendant guilty. The jury returned a verdict finding the defendant “guilty of selling beer to C. S. Lloyd and Smith, May 9 to 11, 1891.” A motion for a new trial was made, the principal grounds of which were the refusal of the court to compel a more restricted, definite and certain election on the part of the state, but the motion was overruled, and the defendant was sentenced to pay a fine of $ 100 and to be confined in the county jail for the period of 30 days.

The numerous decisions upon the subject of election in like cases compel a reversal of the judgment in this case. It is difficult to see why the information was held to charge more than one offense. The language employed indicated a purpose to charge the defendant with keeping a place where intoxicating liquors were unlawfully sold, and where persons were permitted to resort for the purpose- of drinking such liquors as a beverage; in other words, the keeping of a common nuisance. If it had been so treated, the state would not have been required to elect upon what sales it would rely for conviction, and the testimony produced seems to have been sufficient to have sustained such a charge. However, the information was regarded by both the court and counsel as charging two offenses in a single count: One, the unlawful sale of intoxicating liquors, and the other, the keeping of a common nuisance. The state elected to try the defendant for the unlawful sale of intoxicating liquors on or about the 15th day of May, 1891. With that interpretation of the information and election, it was the duty of the court to require the state to select and rely for a conviction .upon one of the several sales about which testimony was given. There was testimony offered tending to show numerous sales to both Lloyd and Smith during the month of May, 1891, and testimony of many sales to each and to both during the times named in the election and in the verdict. The uncertainty and indefiniteness of the election no doubt confused the jury, and led them to return such a comprehensive and indefinite verdict. There was error in not requiring a more definite election, and error in the charge of the court in not restricting the jury to a single sale. (The State v. Schweiter, 27 Kas. 500; The State v. Crimmins, 31 id. 376; The State v. O’Connell, 31 id. 383; The State v. Guettler, 37 id. 582; The State v. Lund, ante, p. 209; same case, 30 Pac. Rep. 518.)

The judgment of the district court will be reversed, and the cause remanded for a new trial.

All the Justices concurring.