Junction City v. Keeffe

• Decision Date: 10 November 1888
• Citation: 40 Kan. 275,19 P. 735
• Parties: THE CITY OF JUNCTION CITY v. THOMAS KEEFFE
• Court: Kansas Supreme Court

19 P. 735

40 Kan. 275

THE CITY OF JUNCTION CITY v. THOMAS KEEFFE

Supreme Court of Kansas

November 10, 1888

Appeal from Davis District Court.

PROSECUTION upon the charge of being the keeper of a place where intoxicating liquors are unlawfully kept and stored in violation of an ordinance of Junction City. Judgment for defendant Keeffe, at the March term, 1888. The City appeals. The opinion states the facts.

Cause reversed and remanded.

Thomas Dever, for appellant.

J. R McClure, and James Ketner, for defendant.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

This action was commenced in the police court of the city of Junction City, by filing a complaint, which, after the caption, is as follows:

"Emma Parsells, being duly sworn, upon her oath says that on this 21st day of June, 1887, at and within a certain one-story wooden building, (and the adjoining appurtenances to said building,) commonly called and generally known as Keeffe's drug store, and situated on lot 6, block 62 railroad addition to Junction City, within the corporate limits of the city of Junction City, in the county of Davis and state of Kansas, there is now unlawfully kept thereat certain and divers kinds and quantities of intoxicating liquors consisting of malt, vinous, spirituous and fermented liquors. The particular quantity of each kind of said intoxicating liquors is to affiant unknown. Affiant further saith that said intoxicating liquors are not kept by a druggist or physician having a right to keep and use said intoxicating liquors for lawful purposes, nor are said intoxicating liquors kept at said place for the private use of the keeper thereof, but that said intoxicating liquors are unlawfully kept in and at said above-described place for sale, barter and distribution in violation of the laws of the state of Kansas, and contrary to and in violation of the ordinance of the city of Junction City. Said affiant further saith, that on said 21st day of June, 1887, one Thomas Keeffe, there being, and being the occupant and keeper of said above-described place, did then and there unlawfully keep and maintain said place as a place for the unlawful keeping and unlawful storing of intoxicating liquors, and did then and there unlawfully keep said intoxicating liquors for unlawful purposes, contrary to and in violation of the ordinance of the city of Junction City."

The police judge issued the following warrant, which is, after omitting caption:

"Whereas, complaint in writing, under oath, has been made to me, and it appearing that there are reasonable grounds for believing that certain intoxicating liquors, to wit, malt, vinous, spirituous and fermented liquors in divers quantities are now unlawfully kept and unlawfully stored in and at a certain one-story wooden building, (and at and within the adjoining appurtenances to said building,) commonly called and generally known as Keeffe's drug store, and situated on lot 6, block 62, railroad addition to Junction City, within the corporate limits of the city of Junction City, and that one Thomas Keeffe is the keeper of said place: You are therefore commanded forthwith to search the premises above described, and seize all malt, vinous, spirituous and fermented liquors found thereat, and bring the same before me to be disposed of as the law directs. And you are further commanded, that if you find any malt, vinous, spirituous or fermented liquors at said described premises, you will then forthwith arrest the said Thomas Keeffe and bring him before me to answer the charge of keeping a place where intoxicating liquors are unlawfully kept and stored in violation of the ordinance of the city."

The premises above described were searched by the officer, and a large quantity of beer, whisky and gin was found thereon. Thomas Keeffe, the defendant, was arrested and brought before the police judge. At his request the cause was continued for several days, and he entered into a recognizance for his appearance. On the day to which it was continued, the defendant moved to quash the complaint and warrant, which was overruled by the court. The case was continued from time to time before it was tried, when the defendant was found guilty and sentenced to pay a fine of $ 100 and the costs of the prosecution, and to be confined in the jail of Davis county for thirty days. From that judgment the defendant appealed to the district court, where a motion was made to quash the warrant, which was overruled, and the cause continued. At the March term, 1888, the following motion was made, which is, after caption:

"And now comes the defendant and renews his motion to quash the warrant issued for the arrest of the defendant in this case, for the following reasons: 1st, that said warrant was improvidently and illegally issued; 2d, that said defendant was arrested without any authority of law, and without any proper warrant."

This motion was sustained, and the defendant Keeffe was discharged without day. The state appeals.

The defendant contends that the judgment of the district court discharging him does not fall within any of the cases in which the state may appeal to the supreme court, namely: Upon a judgment for the defendant on quashing or setting aside an indictment or information; upon an order of the court arresting the judgment; or, upon a question reserved by the state. He claims that it cannot be upon a question reserved by the state, owing to the phraseology of § 288 of the criminal code:

"In case of an appeal from a question reserved on the part of the state, it is not necessary for the clerk of the court below to certify, in the transcript, any part of the...