State v. Dollar

• Decision Date: 07 December 1912
• Docket Number: 18,086
• Parties: THE STATE OF KANSAS, Appellee, v. JOHN DOLLAR, HERMAN KRUGER and JOHN PODPECHAN, Appellants
• Court: Kansas Supreme Court

128 P. 365

88 Kan. 346

THE STATE OF KANSAS, Appellee, v. JOHN DOLLAR, HERMAN KRUGER and JOHN PODPECHAN, Appellants

No. 18,086

Supreme Court of Kansas

December 7, 1912

Decided July, 1912.

Appeal from Crawford district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTOXICATING LIQUORS -- Evidence--Receipts of Carloads of Beer. On a trial upon the charge of selling intoxicating liquor in violation of law it is competent to show that the accused ordered and received eight to twelve carloads of beer at the railroad station in the town, where, as was claimed they did the unlawful business, for any period within two years before the commencement of the action.

2. INTOXICATING LIQUORS -- Evidence--Government Internal Revenue Receipts. It is also competent in such action to show that the accused, during all or a portion of the two years preceding the commencement of the action, had procured internal revenue receipts as wholesale malt liquor dealers, setting forth the names to whom issued, the place the business is to be conducted, and the time of the issuance thereof.

3. INTOXICATING LIQUORS -- Evidence--Papers Found in Place of Business. In such case, after a witness has testified to buying beer repeatedly in cases and half-barrels, it is competent to introduce papers which are shown to have been found in the place of business of such witness, and which purport to evidence the payment to accused for liquors received from time to time and during the time testified to by the witness and within two years prior to the commencement of the action.

4. JUDICIAL NOTICE--Location of Cities and Towns. In such case, where the question of sufficiency of proof of venue is first raised on appeal, this court may take judicial notice of the fact that certain incorporated cities and towns are located in certain counties, and also, from evidence of certain directions and distances in establishing the location of certain places with reference to said cities and towns, that said places are also within the boundaries of said counties.

B. S. Gaitskill, of Girard, for the appellants.

John S. Dawson, attorney-general, and W. P. Montgomery, special assistant attorney-general, for the appellee.

OPINION

SMITH, J.:

The first assignment of error is that the evidence in regard to the shipments of beer ordered and received did not tend to prove any of the specific sales charged, and therefore should have been excluded. The State v. Schoenthaler, 63 Kan. 148, 65 P. 235, is cited in support of this contention. The accumulation of a large amount of intoxicating liquors--so large as to rebut any presumption that the liquors are for personal use, and entirely unexplained--affords ground for the inference that such accumulation is in preparation for a sale or sales. This is the gist of the Schoenthaler case, supra. Such inference is proper on the trial of a charge of unlawful sales as well as upon a charge of maintaining a nuisance. It is circumstantial evidence, not of a specific sale, but, unexplained, of preparation to engage in the business of selling the liquors.

To sustain a conviction upon any charge in this case there must be evidence of a specific sale at the time and place charged, but circumstantial evidence tending to establish guilt may be considered as in other cases.

Assignments of error from 11 to 21, inclusive, relate to the admission in evidence of exhibits Nos. 5 to 12, inclusive. These exhibits purport on their face to be statements of the amount of beer bought by one Joe Nepote of John Dollar and Company, a firm composed of the appellants. A part of these statements are also receipted, as paid in full, by H. Kruger, one of the appellants. Before the introduction of these exhibits, a witness had testified that he found the exhibits in the place of business of Joe Nepote, who had testified that they represented purchases of beer which he had bought of John Dollar and Company, as indicated by the exhibits, and that he had paid the appellants for the same. The statements were properly...