State v. Lund

51 Kan. 1 | Kan. | 1893

The opinion of the court was delivered by

Johnston, J.:

This was a prosecution for the unlawful sale of intoxicating liquor, which resulted in the conviction of C. Lund, the appellant. The punishment imposed was imprisonment for 30 days, and the payment of a fine of $500.

Several grounds of error are assigned for reversal, but there is little of merit in any of them. The first, that the verdict is unsupported by the evidence, does not require much attention. The appellant was engaged in the drug business, and was charged with an unlawful sale of intoxicating liquor on the 29th of May, 1892. There was testimony of a sale made on that day, and the state elected to rely upon a sale made to one Frank Case, who gave clear and positive testimony that he purchased a half pint of whisky from the appellant at that time. He was contradicted by the appellant, but the jury chose to believe the former, and a verdict based on such conflicting testimony will not be disturbed. There is some other corroborative testimony, however, which tended to show that the appellant was engaged in the unlawful sale of intoxicating liq uors.

The complaint that a full cross-examination of this witness was not allowed is without justification. There was no undue restriction of the examination as to any matter material to the case. The information was verified by a private citizen, who swore positively that the allegations contained in the same were true.

The appellant requested an instruction to the effect that th e jury could not find the defendant guilty of an offense except such as the complaining witness had notice or knowledge of at the time he verified the information. This was refused by the court, and the refusal is assigned as a ground of error. There is no testimony in the record, however, upon which to base such an instruction. The prosecuting witness who verified the information did not testify in the action, nor was there any testimony to show that he did not have notice or knowledge of the facts stated at the time the information was verified. As stated in the case of The State v. Brooks, 33 Kas. 712, “it must be presumed, in the absence of anything to the-contrary, that he has such actual knowledge. It cannot be supposed that he makes oath to an offense of which he has no-knowledge.”

The final contention is, that the judgment was void because-it does not affirmatively show that the court informed the defendant of the verdict of the jury and inquired whether he had any legal cause to show why judgment should not be pronounced against him before it was rendered. The State v. Jennings, 24 Kas. 642, is cited to sustain the contention. The case cited does not apply, nor is there anything substantial in the objection. Tbe appellant was charged with a misdemeanor, and the personal presence of the defendant during the trial upon such a charge is not absolutely required. More than that, it appears that the defendant and his counsel were informed of the verdict, as is shown by his motion for a a new trial, in which he sets up grounds why the verdict should be set aside and judgment should not be given against him. This motion was made prior to the rendition of the judgment, when the defendant and his counsel were present in court, and immediately after overruling his application the judgment was pronounced. It thus appears that the defendant was fully informed of the verdict, made his objections thereto, and has no good ground for complaint.

We find no error in the record, and therefore the judgment of the district court will be affirmed.

All the Justices concurring.