City of Hutchinson v. Weems

• Decision Date: 08 November 1952
• Docket Number: No. 38624,38624
• Citation: 173 Kan. 452,249 P.2d 633
• Parties: CITY OF HUTCHINSON v. WEEMS.
• Court: Kansas Supreme Court

Page 633

249 P.2d 633

173 Kan. 452

CITY OF HUTCHINSON v. WEEMS.

No. 38624.

Supreme Court of Kansas.

Nov. 8, 1952.

Syllabus by the Court.

In a prosecution for the violation of a city ordinance making it unlawful to transport alcoholic liquor in an 'open bottle' except under certain conditions specified therein, the language of such ordinance being in all material respects identical to the provisions of section 93 of the Kansas liquor control act, Laws of 1949, Chap. 242, now appearing as G.S.1949, 41-804, the record is examined and it is held that under the evidence in the case it was not improper to instruct the jury, all as more fully set out in the opinion, that in order to find defendant guilty he must have known or have had reasonable cause to know or suspect that alcoholic liquor in an 'open bottle' was present in and being transported by him in his automobile in a manner and under conditons prohibited by such ordinance.

Bill R. Cole, Asst. City Atty., Hutchinson, argued the cause, and Fred C. Littooy, City Atty., Hutchinson, was with him on the briefs, for appellant.

No appearance for appellee.

PRICE, Justice.

The basic question in this case involves the construction of Section 93 of the Kansas liquor control act, Laws of 1949, Chapter 242, now appearing as G.S.1949, 41-804, making it unlawful to transport alcoholic liquor in an 'open bottle,' except under certain conditions specified in the statute.

In the early morning hours of December 12, 1950, the 1941 Plymouth four-door sedan being driven by defendant collided with a truck which was parked on a street in the city of Hutchinson. Defendant and his two companions were thrown from the car, sustained injuries, and were removed immediately to a hospital where one of them died a few hours later.

During the course of a routine investigation of the accident police officers found a half pint bottle of alcoholic liquor underneath the left front seat of the car. The seal had been broken and the bottle was only partially full. Another bottle, broken, was found on the pavement a few feet from the car. Presumably it had fallen out as a result of the collision.

The city of Hutchinson had an ordinance relating to the transportation of alcoholic liquor in any vehicle upon a public highway, street or alley within its corporate limits. The language of this ordinance, in all material respects, is identical to the provisions of G.S.1949, 41-804, which reads:

'Transportation of liquor in opened containers unlawful; exception; penalty. It shall be unlawful for any person to transport in any vehicle upon a public highway, street or alley any alcoholic liquor except in the original package or container which shall not have been opened and the seal upon which shall not have been broken and from which the original cap or cork shall not have been removed, unless the opened package or container be in the locked rear trunk or rear compartment, or any locked outside compartment which is not accessible to the driver or any other person in said vehicle while it is in motion. Any person violating this section shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not more than two hundred dollars ($200) or by imprisonment for not more than six (6) months or by both such fine and imprisonment.'

Defendant was charged in police court with a violation of the ordinance and was found guilty. He perfected an appeal to the district court where the case was tried de novo before a jury.

In the district court the police officers testified as to the bottle found in the car and the broken bottle near the car, as above related.

The evidence of defendant was substantially as follows:

On the evening of December 11, 1950, defendant, in company with one Reese, drove from Hutchinson to Wichita to attend a party at which his engagement to his now wife, June, was to be announced. She was attending college in Wichita. During the evening they went to a dance. Defendant testified that he took no alcoholic liquor with him on his trip to Wichita; that he had none in his possession during the evening; that he did not drink any alcoholic liquor at any time during the evening or night, and that he knew nothing about any bottle or bottles of alcoholic liquor being in his car.

June testified that she drank no alcoholic liquor during the evening or night, and that she knew nothing about any being in the car. She returned to Hutchinson with defendant and Reese and drove the car as far as Newton, at which place defendant took the wheel and drove the rest of the way to Hutchinson. She was asleep at the time of the collision.

Defendant could not recall how the collision occurred, and the evidence infers that he went to sleep while driving. Reese died in the hospital a few hours later. As heretofore stated, defendant disclaimed any and all knowledge of any alcoholic liquor being in the car. He was employed at a gasoline filling station in Hutchinson. His father also worked there, and the car was owned by the father who used it as a sort of 'service car' at the station. On frequent occasions persons other than defendant or his father used the car, with their permission. Two or three weeks prior to the night in question defendant had let some friends of his who were going into the military service use it, and the gist of his testimony was that if any alcoholic liquor was in the car it had been placed and left there by other persons, entirely without his knowledge.

At the trial the city and defendant stipulated as follows:

'Let the record show that it is stipulated and agreed between the parties that Dr. Hall could be called, and that Dr. Hall would testify that he saw or smelled no evidence or did not observe any evidence of any drinking or intoxicating liquor on any of the parties that he took care of immediately after the accident.'

The city requested the court to give the following instruction:

'If you find that the defendant transported in any vehicle any alcoholic liquor in a container which had been opened and the seal upon which had been broken and from which the original cap or cork had been removed, and that said container of liquor was not in a locked outside compartment which is not accessible to the driver or any other person in said vehicle while in motion, you shall find the defendant guilty.'

The court refused to give this instruction standing alone, and gave the following instruction relating to knowledge or reasonable cause to know or suspect that alcholic liquor was being transported in violation of the ordinance:

'The jury are instructed that in order to find the defendant guilty in this case the defendant must have known or had reasonable cause to know that intoxicating liquor was present in the automobile which he was driving in any place other than a locked outside compartment, with the seal of the bottle broken.

'In this connection the jury are instructed that if you find that the defendant even suspected or should have suspected that intoxicating liquor was being thus transported in his car, then you could find the defendant guilty as charged. However, if the jury finds that the defendant did not know or that he had no reason to know or suspect that liquor was being illegally transported in his automobile, then you will find him not guilty as charged. The defendant is, of course, charged with knowledge of the ordinance quoted in Instruction No. 4 and all of its provisions, and mere ignorance of that ordinance will not excuse him or prevent him from being found guilty under this charge.'

The jury returned a verdict finding the defendant not guilty. The city reserved the question and has appealed from the giving of such instruction.

Because of their identical provisions and in the interest of clarity, we will treat this prosecution as having been had under G.S.1949, 41-804, rather than under the city ordinance, and the sole question, therefore, is whethr defendant was entitled to the instruction relating to knowledge or reasonable cause to know or suspect that alcoholic liquor was being transported by him in violation of the statute.

In support of its contention the city, while admitting that under the common law a crime consists of two elements, namely, an evil intention and an unlawful act, argues that the instruction under consideration overlooks the distinction between acts which are malum in se, and which include guilty knowledge and intent, and those acts which are malum prohibitum, that is, wrong only because prohibited by statute or ordinance, and which require no proof of criminal intent or knowledge, and we are cited to the case of City of Hays v. Schueler, 107 Kan. 635, 193 P. 311, 11 A.L.R. 1433, in which it was held that a city ordinance regulating operation of motor vehicles on streets of a city and requiring a red rear light to be displayed between certain hours may impose a penalty for its violation without making a specific intent or guilty mind an essential element of the misdemeanor.

In that case a number of our earlier decisions touching upon the general subject matter were reviewed, and the court said:

'If it were necessary to validity of an ordinance that conditions of the character indicated in the motion to quash should be inserted, the full protection which the regulation is designed to afford could not be secured, and evasion would be so easy the regulation would practically, if not utterly, fail. The regulation falls, therefore, within the numerous class in which diligence, actual knowledge, and bad motives are immaterial, and the fact of noncompliance entails penalty.'

By analogy, it is argued that to require proof of guilty knowledge or reasonable ground for having such knowledge in every prosecution under the statute in question would in practical effect result in a complete breakdown of law enforcement with respect to this particular offense.

We are also cited to Yoe v. Hoffman, 61 Kan. 265, 59 P....