30 Kan. 476 | Kan. | 1883
The opinion of the court was delivered by
This was a criminal prosecution, brought by the state of Kansas against Camille Teissedre, under § 13 of the prohibitory liquor law, charging the defendant with keeping and maintaining a common nuisance. The information reads as follows, (omitting the caption and verification:)
“In the name and by the authority of the state of Kansas, I, Theodore Laing, county attorney in and for the county of Cloud, in said state, who prosecute for and in behalf of said state, in ,all courts sitting in and for said county of Cloud, and duly empowered to inform of offenses committed within said county, come now here and give the court to understand and be informed, that Camille Teissedre, on, to wit, the first day of June, A. D. 1881, and on divers other days and times between that date and the day of the filing of this information in said county of Cloud, did keep the place known and described as the west room of Bartlett & Crump’s brick block, situated on lot one of block five in the city of Clyde, in said Cloud county; and in said place the said Camille Teissedre, as well as divers other persons, with the knowledge and consent of the said Camille Teissedre, then and on said other days and times unlawfully did sell, barter,*481 give away, and keep for sale, barter and use, intoxicating liquors, in violation of the act of the legislature of the state of Kansas, approved February 19,1881, entitled ‘An act to prohibit the manufacture and sale of intoxicating-liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes/ to the common nuisance of the people of said state of Kansas, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.”
The case was tried before the court and a jury on October 25, 1881, and the defendant was found guilty and adjudged to pay a fine of $150, and costs of suit, and was ordered to stand committed to the county jail until such fine and costs were paid; and it was further ordered that the sheriff of the county be directed to shut up and abate the nuisance. On October 26, 1881, the defendant served proper notices for the purpose of taking an appeal to the' supreme court. No further attention was given to the case until July 31, 1882, when the defendant filed a transcript of the case in the supreme court. The defendant also claims that other notices of appeal were properly served on August 10, 1882; but no sufficient evidence of the service of these last-mentioned notices has ever been presented to the supreme court. Afterward, and on July 5, 1883, the defendant’s appeal was dismissed from the supreme court, on the ground that the transcript was not filed within thirty days after the first notices of appeal were given, and that there was no sufficient evidence that the second notices were ever given. (The State v. Teissedre, ante, p. 210.) Afterward, and on July 17, 1883, the defendant again served proper notices of appeal, and on July 24, 1883, the transcript of the ease was again filed in the supreme court. The attorney general now moves to dismiss the defendant’s last appeal, upon the grounds that the service of the notices of appeal on October 26, 1881, constituted a complete and perfect appeal; that the defendant can have but one appeal; that his first and only legal appeal has been dismissed by the supreme court; and that the district
The defendant’s counsel set forth eight different grounds upon which they claim that the judgment of the court below should be reversed, none of which grounds -we think are tenable, and all must be overruled.
Here this opinion might properly close, as counsel for the defendant have not seen proper to refer us specifically to the particular pages of the record which they desire us to examine on each of the points made. We shall, however, briefly discuss the principal points made by counsel.
I. We think that said § 13 of the prohibitory liquor law is constitutional, so far as it has application to this case.
II. We do not think that the information upon which the defendant was prosecuted is fatally defective in not setting forth facts sufficient to constitute a public offense, simply “because it does not charge that the defendant had no per
III. The court below did not err in permitting the state to show that the defendant did not have any druggists’ permit or license to sell intoxicating liquors; for if he sold intoxicating liquors without having any such permit, then the evidence clearly tended to prove that he was guilty of the pffenses charged in the information.
IV. It was no error for the court below to permit the
V. It was no error for the court, exercising a sound judicial discretion, to permit the case to be opened during the closing argument of the counsel for the defense, and then to permit the state to prove in what county and state the alleged offense was committed. (Cr. Code, §227; 1 Bishop on Cr. Proc., § 966, and cases there cited.)
VI. It was no error for the court below to instruct the jury “that beer is presumed to be intoxicating, until the contrary is proved.” In the absence of evidence to the contrary, beer will always be presumed to be an intoxicating liquor, (The State v. Volmer, 6 Kas. 371; Briffitt v. The State of Wisconsin, decided by the supreme court of Wisconsin, May 31, 1883, 16 N. W. Rep. 39; same case, 58 Wis., and cases there cited; The State v. Lemp, 16 Mo. 389; Markle v. Town of Akron, 14 Ohio, 586.)
VII. We cannot tell whether the court erred or not, in refusing to give certain instructions to the jury, for the reason that the instructions given have not been brought to this court.
VIII. We do not think the court erred in overruling the motions of the defendant for a new trial, and in arrest of judgment; for, as we think, the information, the evidence, and the verdict of the jury were sufficient to sustain the judgment; and no sufficient error was committed by the court at any stage of the proceedings giving the defendant a right to a new trial.
The judgment of the court below will be affirmed.
See The State v. Teissedre, ante, p.213.
See The State v, Teissedre, ante, p. 211.