No. 13,786 | Kan. | Feb 6, 1904
Lead Opinion
The opinion of the court was delivered by
On February 12, 1901, an information was filed against George B. Stevens ip the district court of Harper county. The intention of the prosecutor in said information was to charge appellant with being the owner and keeper of a common nuisance in the city of Anthony, Harper county, Kansas, under section 4, chapter 165, Laws of 1887 (Gen. Stat. 1901, §2468).
Defendant filed his motion to quash the information, on the ground, first, that said information was vague, indefinite and uncertain as to the offenses charged ; second, that several offenses were improperly joined and set forth in one count of the information. This motion was heard and by the court sustained on April 22, 1903. The county attorney was given-leave, over the objection of defendant, to amend the information, and an amended information, charging the defendant in two counts with keeping and maintaining a com
Defendant then filed a plea in abatement, alleging, in substance, that the amended information filed against him on April 23, 1903, was not an amendment of the original information filed against him on February 12, 1901, but was a total departure from it; that the only crime attempted to be charged in the supposed information was the crime of being the keeper of a common nuisance, as defined by section 4, chapter 165, Laws of 1887 (Gen. Stat. 1901, §2463) ; that said law defining the crime with which he was sought to be charged in the original information was repealed by section 1, chapter 232, Laws of 1901 (Gen. Stat. 1901, §2493).
Defendant in his plea in abatement further averred that at the time of the repealing of section 4, chapter 165, Laws of 1887 (Gen. Stat. 1901, §2463), there was no sufficient information or proceeding pending against him charging him with the offense attempted to be charged in the amended information; that the original information filed against him failed to charge him with the offense or crime of being the owner or keeper of a common nuisance, as defined by the law in force at the time of filing the original information. To this plea in abatement a demurrer was filed, and sustained by the court, to which ruling the defendant excepted. A trial was had upon the amended information, and on September 19, 1903, defendant
Chapter 232, Laws of 1901, took effect March 1, 1901. Section 9 of that act repeals all acts and parts of acts inconsistent therewith and contains no saving-clause as to pending prosecutions, or otherwise. Section 4 of chapter 165, Laws of 1887 (Gen. Stat. 1901, § 2463), under which defendant was prosecuted and convicted, contains both a criminal and civil remedy for the suppression and abatement of common nuisances. Section 1 of chapter 232, Laws of 1901 (Gen. Stat. 1901, § 2493), contains a criminal remedy only for the suppression and abatement of common nuisances. In section 4 of the act of 1887, it is the owner or keeper of such nuisance who is defined as being the-offender. In section 1 of the act of 1901 it is the person who maintains or assists in maintaining sucln common nuisance who is defined as being the offender. The fine in each of said sections, upon conviction, is the same; but under the former, upon conviction, the maximum jail sentence is ninety days, while under the latter, upon conviction, the maximum jail sentence is six months. Because of changes in the nature of the offense, and because of the change in the penalty prescribed, section 4,- chapter 165, Laws of 1887 (Gen. Stat. 1901, § 2463), was repealed by section 1, chapter 232, Laws of 1901 (Gen. Stat.
If, as contended by defendant, the original information was so defective as not to have charged him with an offense under section 4 of chapter 165, Laws of 1887 (Gen. Stat. 1901, § 2463), the trial court committed error in not sustaining defendant’s motion to quash and in sustaining the demurrer of the state to the plea in abatement.
We have carefully examined the original information. It is in artistically drawn, and does not use the language of said section 4 in charging defendant with being the owner or keeper of such common nuisance, and is somewhat open to the charge of being indefinite. We are of the opinion, however, that the averments of this information are such that a proceeding was commenced, within the meaning of section 7342, General Statutes of 1901; that under said section the right survived to the state, under the order of the trial court, to amend the original information and prosecute defendant under the information as amended ; that the amended information was not such a departure from the original infoiunation as to be fatal to it; that the court committed no error in refusing to sustain defendant’s motion to quash the amended information, or in sustaining the demurrer of the state to the plea in abatement.
A more serious ^question arises, however, upon defendant’s assignment of error to the ruling of the trial oourt in overruling his challenges for cause to jurors who sat and served at the trial. The record contains .a statement that
“On the trial of said cause the evidence disclosed and proved that on the morning of the 30th day of January, in the year 1901, there occurred in the city of Anthony, in said county, what was known as a
The following are questions propounded by defendant to the juror R. C. Haskins upon his voir dire— a juror who sat and served at the trial of said cause —and his answers thereto :
“Ques. You heard along some time in the latter end of January or first of February of 1901 of what was known as the smashing of intoxicating liquors here in the city of Anthony? Ans. Yes, sir; I believe I did.
“Q. Did you read about it at the time-? A. Yes; sir.
“Q,. Read that Mr. Stevens had some property destroyed by a mob at that time? A. Yes, sir.
“Q,. Well, did that lead you to form the opinion that Mr. Stevens, who had his property destroyed, was probably engaged in the violation.of the prohibitory law at that time? A. Yes, sir ; I think it did.
“Q,. And you have that opinion at this time, don’t you? A. Yes, sir.
“Q,. That. Mr. Stevens, who had his property destroyed at that time, was engaged in the violation of the prohibitory-liquor law? A. Yes, sir.
“ Q. And probably the keeper or maintainer of what is known as a joint? A. Yes, sir.
“ Q. Are you acquainted with- Mr. Stevens? A. No, sir.
“Q. If it should transpire that the defendant is the same Mr. Stevens you heard of — the same man that 'had the property destroyed — you would have an opinion, as far as that fact appears, that he was at
Defendant challenged this juror for cause, and the court overruled the challenge and permitted the juror to sit and serve upon the trial. Like questions to the jurors P. E. Roy, 0. F. Debord and R. Behrens met with similar responses, and each 'of these jurors was by defendant challenged for cause ; each such challenge wras overruled by the court, and each juror sat and served upon the trial, over the objection of defendant. The record further shows that defendant, in impaneling the jury, exhausted all his peremptory challenges on others offered as jurors. Did the trial court commit error in overruling the challenges to these jurors for cause?
The defendant was entitled to jurors who had not formed an opinion with reference to whether these places, on account of their having been raided by “joint smashers,” were places where intoxicating liquors were being unlawfully kept, sold, or drank, as a beverage, in violation of the act of 1887. So far as the jurors named were concerned, it was only necessary to prove that these were the places that had been broken into by the parties at the time engaged in “joint smashing.” That being done,'so far as these jurors were concerned, the state had made its case against defendant. He was entitled to be tried by a jury to whom it would have been necessary for the state to prove, by legal and competent evidence, that the places described in the amended information were places where intoxicating liquors were unlawfully kept, sold, or drank, as a beverage, in violation of the law, and that defendant was the owner or keeper thereof. The record clearly discloses that the jurors named, from their answers on their voir dire,
Dissenting Opinion
(dissenting) : I dissent from the conclusion reached as indicated in the third division of the syllabus and the corresponding portion of the opinion.
In addition to the questions and answers quoted from the examination of juror Haskins, the record shows the following :
‘ ‘ Q,ues. Have you any impression now as to whether or not this defendant, George B. Stevens, was guilty of violating the prohibitory-liquor law? Ans. I think I have.
‘ ‘ Q,. That opinion is formed upon the supposition that he is the Stevens that was named in the article you have read (i. e., newspaper article about the smashing of liquors) ? A. Yes, sir.
‘1 Q. That is the only ground upon which you base your opinion? A. Yes, sir.”
Now, at the time the juror was accepted, there was nothing whatever connecting his “impression,” derived from newspaper reading, with the defendant. It had not been shown that the defendant was the man whose property had been destroyed. Admitting that had the juror at this time had this knowledge he would have been disqualified, he did not then have it and hence was a good juror when accepted.. The court
Beyond this I do not believe, even had it been shown at the' time of the impaneling of the jury that the defendant was one whose property had been smashed, that the impression or opinion arising from that was sufficient to disqualify. Such opinion came from the reading of newspaper accounts. It is well characterized by the juror as an impression — such an impression as readers of newspapers get by reading news items, and such only. We have passed the day when only those who cannot or do not read newspapers are eligible to service on juries.
Dissenting Opinion
(dissenting): I agree with the views expressed in the last paragraph of the dissenting opinion of Justice Cunningham, and for that reason join in the dissent.
Dissenting Opinion
(dissenting): I concur in the views expressed by Justice Cunningham in the last paragraph of his .dissenting opinion.