68 P. 1081 | Kan. | 1902
The opinion of the court was delivered by
This is a prosecution under section 2493, General Statutes of 1901 (Laws 1901, ch. 232, §1), commonly known as the “Hurrel law.” The defendant was convicted of maintaining a nuisance, and appeals.
The only important allegation of error is that the court refused, upon motion, to quash the information. In the court below, the constitutionality of the law
In the case of The State v. Thompson et al., 2 Kan. 436, the rule as laid down in Archbold’s Criminal Practice and Pleading was sanctioned by this court. It is as follows :
“If there be any exception contained in the same clause of the act which creates the offense, the indictment must show negatively that the defendant or the subject of the indictment does not arise within the exception. If, however, the exception or proviso be in a subsequent clause or statute, or although in the same section, yet if it be not incorporated with the enacting clause by any woi'ds of reference, it is in that case matter of defense for the other party and need not be negatived in the pleading.’’ (See, also, City of Kansas City v. Garnier, 57 Kan. 412, 46 Pac. 707.)
It was not error for the court to permit evidence to be introduced to show that the place where the intoxicating liquors seized were kept by the defendant was not a dwelling-house, as it was requisite to produce such proof in order to make the fact of finding intoxicating liquors in his possession prima facie evidence that such liquors were kept for sale in violation of law.
The judgment of the court below is affirmed.