92 Kan. 983 | Kan. | 1914
The opinion of the court was delivered by
This appeal is from a conviction for persistent violation of the prohibitory liquor law.
On a motion to quash the information it was contended that the act under which the prosecution was instituted (Laws 1911, ch. 165) is unconstitutional because the subject is not clearly expressed in the title. The act was assailed upon the same ground in The State v. Adams, 89 Kan. 674, 132 Pac. 171; The State v. Schmidt, ante, p. 457, 140 Pac. 843, and The State v. King, ante, p. 669, 141 Pac. 247, but was held valid.
The defendant alleges that the act-is void for indefiniteness “in that it does not prescribe the number
Section 1 of the act provides that:
“Any person or persons who having once been duly convicted of the violations of the prohibitory liquor law and who shall thereafter directly or indirectly violate the provisions of the prohibitory liquor law shall be considered a persistent violator of the prohibitory liquor law.”
It is argued that the expression “violations of the prohibitory liquor law” include only persons who have violated all the provisions of the law. It will not be so held. If any statutory authority is needed to construe the plural here to include the singular, it is found in subdivision 3 of section 9037 of the General Statutes of 1909.
At the time of the arrest the officer took into his possession a bottle of liquor which the defendant had just sold and two others found concealed on his person. These bottles were introduced in evidence on the trial. While the jury were deliberating, the defendant being-absent in jail but his attorney being present, the jury in a written request asked for the bottles. The court called the attention of the county attorney and the attorney for the defendant to the request and asked if there were any objections. The attorney for the defendant gave a negative answer, and humorously suggested that a corkscrew be sent along. The bottles were then sent to the jury unopened and with the seals unbroken. They bore the labels of a certain brand of whisky, reciting that it had been bottled in bond. On the hearing of the motion for a new trial members of the jury testified that a bottle was opened in the jury room and that jurors tasted and smelled of its contents. The abstracts show that the three bottles
It has been held in several cases that it is not error in prosecutions for selling liquor to allow the jury to take bottles offered in evidence to the jury room. (State v. Lindquist, 110 Minn. 12, 124 N. W. 215; Phillips v. The State, 156 Ala. 140, 47 South. 245.)
In State v. Teale, 154 Iowa, 677, 135 N. W. 408, it was held that it was proper to allow a skull showing the location of an injury to be taken to the jury room. That was a prosecution for murder. Contrary rulings have probably been made, but the question to be decided here is whether, if it should be conceded that there was error in sending the exhibits to the jury room in the absence of the defendant, his substantial rights were affected. The statute provides that this court must give judgment without regard to technical errors or defects or exceptions which do not affect substantial rights. (Crim.* Code, § 293.) The district court, in denying the motion for a new trial, stated that it should be overruled under the circumstances. The circumstances were shown by the evidence. If it was undisputed that the contents of the bottles were true to the labels and contained whisky — and it is not contended or suggested otherwise — no prejudice to substantial rights is shown. The situation presented does not afford grounds for reversal.
The judgment is affirmed.
