State v. Durein

• Decision Date: 08 October 1904
• Docket Number: 13,898
• Citation: 70 Kan. 1,78 P. 152
• Parties: THE STATE OF KANSAS v. FRITZ DUREIN
• Court: Kansas Supreme Court

78 P. 152

70 Kan. 1

THE STATE OF KANSAS v. FRITZ DUREIN

No. 13,898

Supreme Court of Kansas

October 8, 1904

Decided July, 1904.

Rehearing granted November 5, 1904.

Appeal from Shawnee district court; Z. T. HAZEN, judge. First

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTOXICATING LIQUORS -- Information -- Unnecessary Allegations. An information charging a defendant with selling intoxicating liquors without first obtaining from the probate judge of the proper county a permit for that purpose need not allege that he was not a registered pharmacist or assistant pharmacist in the employ of a druggist having a permit, in order to state a public offense.

2. INTOXICATING LIQUORS -- Election -- When Not Defective. In a prosecution for selling intoxicating liquors contrary to law an election to rely on a transaction occurring on a stated day is not defective because the witnesses who testified to such transaction are not named, when there is no evidence of any other transaction on the same day; nor is it defective because it does not designate a sale to a particular individual, or group of individuals, out of a dozen men who were drinking, the witnesses to the transaction being unable to identify the precise person or persons who furnished the money observed to pass.

3. INTOXICATING LIQUORS -- Sufficiency of Evidence. In a prosecution of the character noted the evidence of a sale is not insufficient merely because the witnesses to the transaction were unable to identify, out of a dozen men who were drinking, the particular individual or individuals who furnished the money observed to pass.

4. PRACTICE, SUPREME COURT -- Interpretation of Record. In a criminal appeal the record of the proceedings in the trial court will not be interpreted to show error, if it be susceptible of a reasonable interpretation to the contrary.

5. PRACTICE, SUPREME COURT -- Retrospective Inferences. The law relating to retrospective inferences discussed, and applied to the evidence and instructions to the jury in this case.

6. STATUTORY CONSTRUCTION -- Not Invalid Because of Discretion over Permits Vested in Probate Judge. The statutes of this state regulating the sale of intoxicating liquors are not violative of the fourteenth amendment to the constitution of the United States because of the discretion vested in the probate judges of the respective counties over the subject of granting permits to sell such liquors for medical, mechanical and scientific purposes.

7. PRACTICE, DISTRICT COURT -- New Trial. It is not an abuse of discretion for the district court to refuse a new trial, in a misdemeanor case, on account of the defendant's former conviction of the same offense, when such conviction was first brought to its attention by the motion for a new trial.

C. C. Coleman, attorney-general, and A. L. Redden, for The State.

G. C. Clemens, and C. A. Magaw, for appellant.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

On June 28, 1902, Miss Blanche Boies, Mrs. Henry Howard and others of a praying-band, five in number, went to certain rooms in a brick building at No. 402 Quincy street, in the city of Topeka, and found there a flourishing beer saloon. In the place were a bar and shelves and bottles and glasses and tables. Men were sitting at the tables playing cards, and a dozen others were at the bar drinking. A man behind the bar was handing out beer to them, which they drank and paid for, one of the women seeing the money pass. One of the women asked the bartender if that was Mr. Fritz Durein's saloon, and he said it was. She asked for the proprietor, and he said he was Fritz Durein. In the course of a conversation with him he told the women he did not think it wrong to keep a saloon; that it was not against his religion, and that he intended to keep right on running a saloon and selling beer. He drank a glass of it himself and asked the women to have some.

On January 10, 1903, an assistant attorney-general of the state of Kansas for Shawnee county filed an information against this Fritz Durein, charging him with selling liquor without a permit and with maintaining a nuisance at the place described. A warrant was issued at once. Within twenty minutes after receiving the writ the sheriff of Shawnee county and two of his deputies were at the place, and found it to contain a bar and shelves and glasses and tables and an ice-box, bottles and kegs of beer, bottles of whisky, and a miscellaneous lot of bottles and various kinds of liquor, some labeled beer, and some hop-tea, and some wine. Ten or twelve persons were in the room, some sitting at tables and some standing at the bar drinking. Durein was behind the bar setting out beer. Upon a trial the officers and the members of the praying-band already named related the foregoing facts, and a verdict was returned against Durein, finding him guilty of the offenses charged. Judgment upon the verdict was duly rendered, and in an appeal to this court numerous errors are assigned.

The count of the information under which the appellant was convicted of an unlawful sale of intoxicating liquor charged that he made such sale without first taking out and having from the probate judge of Shawnee county a permit for that purpose. It is insisted that every word of that count of the information might be true and the appellant be innocent of any offense, for, it is said, although he had no permit he had a lawful right to sell if he was a registered pharmacist or assistant pharmacist in the employ of one having a permit. Hence it is claimed the count should have been quashed for want of an allegation negativing the bearing of any character by the appellant which might afford him immunity from prosecution. No such allegation was necessary. The statute recognizes no independent right in a druggist's clerk who is a registered pharmacist or assistant pharmacist to make sales of intoxicating liquors. Sales made by such a clerk are regarded as made by the druggist himself. The clerk's identity is merged in that of his employer; and since he has no distinct character of his own, as a dispenser of liquor, a complaint for selling without a permit need not negative such character in order to charge a public offense.

In response to a motion requiring the state to elect upon what transaction it would rely to convict the appellant of an unlawful sale of intoxicating liquors it elected to rely upon an alleged sale to parties whose names were unknown, made on the 28th day of June, 1902. The names of the witnesses to such sale were not stated in making the election, and no further attempt was made to individualize any particular sale. The court instructed the jury that the state relied upon a sale of intoxicating liquor by the appellant to parties whose names were unknown, as testified to by the witnesses, Mrs. Howard and Miss Boies, such sale having been made on June 28, 1902. It is claimed the election was insufficient, and that a conviction was impossible under the evidence of the witnesses named.

No witnesses gave evidence of a sale on June 28, 1902, except those named in the instruction, and their testimony related to the same transaction. The mere fact that a dozen men were drinking at once, or during a given period of observation, and that the witnesses were unable to identify the particular individual or individuals who furnished the money observed to pass, did not militate against the fact that a sale was made. A liquor-seller cannot escape punishment because sales are made to men in such groups, or in such a manner, that witnesses cannot separately discriminate them. If all the elements of a sale appear in evidence, it is sufficient to support a verdict of guilty, even though a keener scrutiny might have detected that several sales were in fact made. The inability of witnesses fully to describe the transaction ultimately advantages the accused, because he is protected against any further prosecution on account of anything which the transaction in fact included. The nuisance sections of the statute do not cover such cases, for sales of the character described may be made by one not the keeper of the place, and if a keeper should also sell he is subject to the penalties prescribed for both offenses. Therefore the election was sufficient, and the verdict was sufficiently supported by the evidence.

A witness testified to sales of intoxicating liquor by the appellant, but before his examination was concluded it was discovered that such sales were made long after the information had been filed. The record then discloses the following:

"The Court: Any testimony concerning anything that may have occurred since this information was filed would not be competent.

"Mr. Redden: The information was filed January 10, 1903.

"The Court: Then the testimony of this witness as to last spring is withdrawn.

"Q. Were you not in there during the spring or summer of 1902? A. I don't think I was.

"Q. Were you not in there about June, 1902? A. I don't remember that.

"Q. And thereafter? A. I don't remember being in there, as I said.

"Q. That is, until in the spring of 1903? A. Yes, sir.

"The Court: This evidence is not competent in this case. Anything that occurred since the information was filed cannot be considered against the defendant."

Appellant insists that the remarks of the court were addressed to counsel only, and not to the jury. The record cannot be interpreted to show error, if it be susceptible of a reasonable interpretation to the contrary. Plainly the statements that the testimony of the witness was withdrawn and that anything occurring since the information was filed could not be considered might have been directed to the jury and, if so, they were sufficient to take the...