State v. Crimmins

• Decision Date: 07 February 1884
• Parties: THE STATE OF KANSAS v. MICHAEL CRIMMINS
• Court: Kansas Supreme Court

2 P. 574

31 Kan. 376

THE STATE OF KANSAS v. MICHAEL CRIMMINS

Supreme Court of Kansas

February 7, 1884

Appeal from Wyandotte District Court.

TWO INFORMATIONS, one against Michael Crimmins, and the other against Charles Hahn. In each thereof the defendant was charged with selling intoxicating liquors without a permit. Trial at the April Term, 1883, when each defendant was found guilty and fined $ 100, and adjudged to pay the costs of the action, and be committed to the jail of Wyandotte county until both the fine and costs are paid. Defendants appeal. The opinion states the facts.

Judgment affirmed.

Byron Sherry, and Wm. S. Carroll, for appellants.

W. A Johnston, attorney general, and Edwin A. Austin, for The State.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This opinion is intended to apply to two different cases: The State of Kansas v. Michael Crimmins, and The State of Kansas v. Charles Hahn. In each of these cases the defendant was charged with selling intoxicating liquors without a permit, and was found guilty and fined $ 100, and adjudged to pay the costs of the suit. The information in each of these cases contained five counts; each of which counts charged the same kind of offense, and charged the same in the same form and substantially in the same language. As to the joinder of counts, see the case of The State v. Chandler, ante, p. 201. The county attorney elected to prosecute each defendant under the fifth count of the information in each case respectively. The count under which Crimmins was prosecuted reads as follows:

"And the said Henry L. Alden, as county attorney in and for the county of Wyandotte, in the state of Kansas, prosecuting for and in behalf of said state, within the county of Wyandotte, in the name and by the authority and on behalf of the said state of Kansas, now here in and to the district court of said county of Wyandotte and state of Kansas, further information gives, that Michael Crimmins, at said county of Wyandotte, state of Kansas, within the jurisdiction of this court, on or about the first day of March, 1883, at and in a certain one-story frame building, situate and being on lot number one hundred and seventy-five (175) on James street, in Kansas City, Kansas, according to the plat of said city on file and recorded in the office of the register of deeds for said county, without taking out and having a permit to sell intoxicating liquors, as provided by the statutes in such case made and provided, did unlawfully sell and barter certain spirituous, malt, vinous, fermented and other intoxicating liquors, contrary to the statute in such case made and provided."

We think this count is sufficient. (The State v. Schweiter, 27 Kan. 499; The State v. Shackle, 29 id. 351; The State v. Hunt, 29 id. 762.)

The count under which Hahn was prosecuted is substantially in the same form as the count under which Crimmins was prosecuted. Each defendant was properly arraigned, each pleaded not guilty, each was tried separately before the court and a jury, in each case several witnesses testified with respect to several sales of different kinds of intoxicating liquors made by the defendant in each case respectively to different persons at different times, and each defendant was found guilty as aforesaid. In the Crimmins case, after all the evidence on the part of the state was introduced, the defendant moved the court to require that the state elect upon which transaction under the evidence it would rely for a conviction, and the court sustained the motion; and the state then elected in the following manner, to wit:

"The state, by its county attorney, elects to rely for a conviction in this action upon a sale of intoxicating liquor, to wit, whisky, or what is commonly known as whisky, by said defendant made to one George Durham, as shown by the evidence herein.

"The defendant then moved the court to require the state to make its election more definite and certain, in this, that the state be required to elect a specific sale among the alleged sales to George Durham, giving the day, month, etc., so as to make it a separate and single transaction; which motion the court overruled, and defendant then and there excepted. And thereupon defendant moved the court that he be discharged, for the reason that the state had made no such election of a single transaction of the sale of intoxicating liquors, as is provided by law to put the defendant on his defense; which motion the court overruled; to which ruling of the court the defendant then and there excepted, and declined to enter upon any defense."

The said George Durham testified on the trial as follows:

"I live in Kansas City, Kansas; have known Michael Crimmins over a year, and have been acquainted with him over one year; his place of business is 175 James street, Kansas City, Kansas; have been acquainted with that place since it was a place; have been in that bar, but not lately -- over four months ago; those are the premises I know to be his place of business; I saw bar-room furniture, consisting of counter, chairs; I saw bottles, glasses on and behind the counter; I bought whisky there; cannot state the time I bought whisky of Mr. Crimmins; paid him ten cents per drink for it; it was in November I bought whisky there -- once or twice of Mr. Crimmins, the defendant; bought lager beer there; I bought beer of the bar-keeper; I think when I bought whisky of Crimmins it was in November, when I paid him ten cents per drink."

(Cross-examined.) "I belonged to the temperance reform club about four months. Have not attended their meetings for two months. I thought I might be subpoenaed. It was talked of; I think it was in November. Cannot be certain whether it was in November or December. Cannot state how many times I bought whisky at that house. Cannot state any particular time. I noticed the number. Think I bought whisky twice--in November I think it was. I will not say I drank liquor more than twice. Don't know the time of day I took the first or second drink. It was before going to work. I don't know the time. I think I got the beer of the man called Toots. I got beer there near the same time. Cannot say how many times I got beer there. I had not drank whisky but a few times. I never knew but the two carrying on business there. I don't know; it would be difficult to tell who waited on me at all times. The time Crimmins waited on me was the last. I swear positively Crimmins gave me whisky there. The bar-keeper waited on me once. I had been indulging in beer a couple of days before I took the whisky. I think I cannot be mistaken. Have not examined the number for the purpose of testifying. I never told anybody I got beer and whisky at this place."

In the Hahn case, the questions with respect to election are substantially the same as in the Crimmins case.

We suppose that upon a criminal trial, where the state has offered evidence tending to prove several distinct and substantive offenses, it is the duty of the court upon the motion of the defendant, to require the prosecutor, before the defendant is put upon his defense, to elect upon which particular transaction the prosecutor will rely for a conviction. (The...