State v. Benoit
| Decision Date | 11 May 1907 |
| Docket Number | 14,938 |
| Citation | 75 Kan. 695,90 P. 249 |
| Parties | THE STATE OF KANSAS v. JOSEPH GIROUX AND JOSEPH BENOIT |
| Court | Kansas Supreme Court |
Decided January, 1907.
Appeal from Cloud district court; WILLIAM T. DILLON, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. INTOXICATING LIQUORS--Information--Duplicity. Where an information contains eleven counts, ten of which charge the defendants with the unlawful sale of intoxicating liquors upon three different dates, and the other count alleges that they are the keepers of a nuisance, which last-named count in part reads: "That on the 6th day of May, 1905, and at divers and other times from that day up to and including the date of the filing of this information, and at the dates of the several offenses hereinbefore charged, a certain place in said county, . . . is a place where intoxicating liquors were and are unlawfully sold, bartered and given away, and where persons were and are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and where intoxicating liquors were and are kept for sale, barter and delivery in violation of law, and where intoxicating liquors bottles, glasses, kegs, pumps, and bars and other property were and are kept in maintaining said place, . . . and that the said Joseph Giroux and Joseph Benoit did, on said May 6, 1905, and at the dates of the offenses hereinbefore charged and at the date of the filing hereof, unlawfully keep and maintain said place . . . and have kept and maintained the same to the date hereof, and are now keeping and maintaining the same;" held, that a motion to quash such count on the ground that it contained several separate offenses should be denied.
2. INTOXICATING LIQUORS--Evidence--Nuisance--Articles Seized in the Building. In such a case the exhibition to the jury of articles taken from the place charged to be a nuisance during the time it is alleged to have been such and at the time the defendants were arrested is not erroneous, even though the contents of a part of the bottles and other vessels are not shown to be intoxicating liquor.
3. INTOXICATING LIQUORS--Prima Facie Proof--Instruction. Where in such a case intoxicating liquors are taken at the place alleged to be a nuisance, as stated in syllabus numbered two, it is proper for the court to instruct the jury that the presence of such liquor at such place is prima facie evidence that it was kept there for unlawful sale or use, as provided by section 2500 of the General Statutes of 1901.
4. INTOXICATING LIQUORS--Druggist's Permit. Where intoxicating liquors are sold as a beverage or kept under circumstances which make the place where they are kept a public nuisance the question whether the defendant has a druggist's permit is immaterial.
C. C. Coleman, attorney-general, and Fred W. Sturges, jr., county attorney, for The State.
Park B. Pulsifer, and Charles L. Hunt, for appellants.
The appellants were convicted in the district court of Cloud county of being the keepers of a nuisance, in violation of the prohibitory law. From such judgment they have appealed to this court. They have assigned several errors in the bill of exceptions, the first being the refusal of the trial court to allow the defendants' motion to quash the eleventh count in the information, that count being the one under which they were convicted. The objection to the count is that it contains two or more separate and distinct offenses. There were ten other counts, each charging a specific sale, the date of the sale and person to whom it was made being stated. The sales so charged were made upon three different dates--April 26, May 6, and May 13. The eleventh count alleges that upon each of these dates, ever since, and now, the place was and is a place where intoxicating liquors were and are kept, etc.; that the defendants were at each of said dates, ever since have been, and are now, the keepers thereof, etc. It is contended that this avers the commission of an offense on each of the days named, which would constitute three separate offenses.
We understand time, in a case like this, to be immaterial. Whatever date may be alleged, the proof may fix the time on any day within the statute of limitations. In a sense an averment that the defendant unlawfully sold intoxicating liquors on January 1, and on sundry and divers days since that date, would charge as many separate and distinct offenses as there were days between the date named and the filing of the information. Such an averment, however would not render the information bad for duplicity. Maintaining a public nuisance is a continuous act, extending from day to day, and the allegation as to time may and ought to be broad enough to cover either all the time within the statute of limitations or as much of it as the prosecutor desires; and while within such time the defendant may have...
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