43 Kan. 279 | Kan. | 1890
Opinion by
The defendant, Herman Reick, at the October term, 1889, of the Geary district court, was convicted of selling intoxicating liquors. The defendant appeals. The information was filed on the 19th day of July, 1889. The defendant claims that the testimony introduced was insufficient to establish that the liquors sold' were intoxi
“ Q,. I will ask you if you were in his place of business, or when were you in his place of business ? A. I can’t say as to the exact time.
“Q. To refresh your memory, were you in his place of business about the 13th day of July, 1889 ? A. I can’t say as to that; I might have been there, and then again I might not have been there.
“ Q,. Have you been in his place of business within the last six months? A. Yes, sir; I have been, within that time.
“Q. I will ask you, Mr. McCullough, whether or not you obtained any beer at Herman Eeick’s place of business within the last six months ? [The defense objected to the question as leading.] A. I obtained what he called malt.”
James Middleton, after testifying that he was acquainted with the defendant, and knew his place of business on the 10th day of July, 1889, testified as follows:
“ Q. I will get you to state whether or not you were in his place of business oil or about the 10th day of July, 1889? A. I can’t say.
“Q. Were you there on or about that time? A. Yes.
“Q,. You say you were? A. I was, I believe.
“Q. That is, were you there along toward the last of July, 1889? A. Yes, sir; along toward the last.
“ Q,. I will get you to state whether you obtained intoxicating liquors of any sort in that place of business ? [Objected to as leading; objection sustained, with the following question.]
*281 “ Q. Did you obtain liquors in his establishment ? A. I got half a pint.
“Q. Didn’t you send your wife and ask him for some? A. Yes, sir.
“Q. Didn’t your wife bring you some that he gave her for you ? A. I think not.
“Q. Your wife brought some the next day? A. Yes, sir; I believe she did.”
The defendant himself testified that he had been in business at the place described by the witnesses since the 15th day of last June. The main contention at the trial was that the liquors sold were not intoxicating. Upon that point there was a great volume of evidence, and probably the jury found correctly on that phase of the case. The date of sale, during the trial, was evidently subordinated to that question, and for that reason probably did not receive the attention it otherwise would have done; but the only question before us that we care to consider relates to the time of sale. We think the evidence did not sustain the verdict. There is nothing in the testimony of McCullough that even inferentially would prove that he bought the “malt” before the 19th day of July, and from all the testimony of Middleton there is nothing that would fix with any degree of certainty the date of his purchase before that day.
We are compelled, therefore, to recommend that the case be reversed.
By the Court: It is so ordered.
I am of opinion that the conviction on the second count, which was for a sale to James Middleton, should stand. Although the testimony in regard to the time of sale is not as full and clear as it should be, I think it sufficiently shows that sale to have been made anterior to the filing of the information. The fact that there was little controversy upon this point probably accounts for the meagerness of proof, and doubtless it might have been made fuller, as the affidavit of
