State v. Coulter
| Decision Date | 06 October 1888 |
| Citation | 19 P. 368,40 Kan. 87 |
| Parties | THE STATE OF KANSAS v. FRED COULTER |
| Court | Kansas Supreme Court |
Appeal from Marshall District Court.
PROSECUTION for the unlawful sale of intoxicating liquor. At the March term, 1888, the defendant Coulter was tried, found guilty and sentenced. He appeals. The opinion states the material facts.
Judgment affirmed.
Glass & Polack, for appellant.
S. B Bradford, attorney general, for The State.
OPINION
The defendant was arrested, charged with the unlawful selling of intoxicating liquors, upon the complaint of Aldus Sharp. The complaint is upon five counts. The defendant was convicted before a justice of the peace upon count two in the complaint, and acquitted as to counts one, three and four, count five being dismissed; from which conviction he appealed to the district court, where he was again convicted. The first complaint of this conviction is, that the defendant was convicted in the court below upon the testimony of one Forbes, and in the district court, upon a sale to one Warren Jackson; and for this reason defendant insists that he was deprived of having a fair trial, in not being informed of the specific offense charged against him, and that such conviction was in violation of $ 10 of the bill of rights. The complaint upon which the defendant was convicted was a general one, and did not specify the character of the liquor sold, or the person to whom sold. This was a trial in the district court de novo, as if no trial had ever been had. The state might introduce any evidence competent to establish this charge, although the conviction bad been had before the justice of the peace upon entirely different testimony. The state was not bound by what it did in the court below. This court said, in The State v. Forner, 32 Kan. 281, 283:
"As the trial in the district court upon appeal must be de novo, the defendant took his appeal with a full knowledge of the risk thereof, and of all the possible consequences; and the state had the right to offer evidence tending to establish the charge in the original complaint, regardless of the election had before the justice of the peace."
But counsel insist that even if this is true, yet the complaining witness at the time of filing the complaint must have had in view this specific sale upon which the defendant was convicted; and if he did not have that knowledge, then the defendant, under the authority of The State v. Brooks, 33 Kan. 708, must be discharged. The distinction between this case and the case cited is, that the defendant in that case was tried and convicted in the district court upon a sale not known to prosecuting witness, and not charged in the complaint; and in this, while the defendant was convicted upon the testimony of a sale to Forbes, before the justice of the peace, yet it was shown that while the prosecuting witness intended to charge a sale to Forbes, yet he also had knowledge, and gave information of that knowledge to the county attorney at the time of filing the complaint, of a sale to Warren Jackson, and gave his name along with the names of other witnesses. Having this knowledge at the time of filing the complaint was sufficient to enable the state to use the testimony of Warren Jackson in securing the conviction in the district court. Sharp had heard Jackson say that he had bought intoxicating liquors -- the particular kind sworn to by Jackson being phosphate lemon rye -- of the defendant, and he had this knowledge at the time of filing the complaint. Mr. Justice VALENTINE, in The State v. Brooks, said:
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State v. Snyder.
...so instructed. There are cases in which the evidence as to other transactions is admissible for certain purposes, as in State v. Coulter, 40 Kan. 87, 19 Pac. 368, and State v. Marshall (recently decided by this court) 44 Pac. 49, in which it was held that the evidence as to other sales migh......
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State v. Chisnell.
...Whar. Cr. Law (8th Ed.) § 1525; Whar. Cr. Ev. § 104; 4 Den. 235; 113 Ind. 26; 9 Lea 373; 72 Wis. 7; 55 Mich. 586; 31 Kan. 376; 34 Kan. 582; 40 Kan. 87; 1 Gray 463; 109 Mass. 349; 35 Ala. 351; 94 111. 37; 5 Mich. 305. 2 On remarks of prosecuting attorney as ground, for new trial. Code, c. 15......
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Burris v. Davis, Civil 3661
... ... and sentence on such plea, except perhaps upon jurisdictional ... questions. Stokes v. State, 122 Ark. 56, ... 182 S.W. 521; State v. Stone, 101 W.Va. 53, ... 131 S.E. 872; State v. Bergeron, 152 La ... 38, 92 So. 726; Browsky v. Perdue, ... though it has originated in the superior court ... Morris v. People, 5 Colo.App. 138, 38 P ... 78; State v. Coulter, 40 Kan. 87, 19 P ... 368; Territory v. Lowitski, 6 N.M. 235, 27 ... P. 496. We think, however, that the allowance of an appeal ... even under ... ...
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State v. Cesar
...State, 11 Ala. App. 296, 66 So. 896; Cluff v. State, 16 Ariz. 179, 142 P. 644; Parks v. State, 136 Ark. 562, 208 S.W. 435; State v. Coulter, 40 Kan. 87, 19 P. 368; State v. Clark, 155 Minn. 117, 192 N.W. State v. Shaw, 58 N.H. 73; Pitner v. State, 37 Tex. Cr. R. 268, 39 S.W. 662. See, also,......