State v. Eldred

• Decision Date: 01 February 1899
• Docket Number: 778
• Citation: 56 P. 153,8 Kan.App. 625
• Parties: THE STATE OF KANSAS v. WILLIAM ELDRED
• Court: Kansas Court of Appeals

56 P. 153

8 Kan.App. 625

THE STATE OF KANSAS v. WILLIAM ELDRED

No. 778

Court of Appeals of Kansas, Southern Department

February 1, 1899

Opinion Filed February 17, 1899.

Appeal from McPherson district court; MATTHEW P. SIMPSON, judge. Affirmed.

Verdict affirmed.

P. J Galle, county attorney, and Geo. W. Allison, for The State.

Grattan & Grattan, for appellant.

OPINION

MILTON, J.:

The information in this case contained twelve counts, eleven charging unlawful sales of intoxicating liquors, and one the keeping of a nuisance within the meaning of the prohibitory law. Appellant was convicted under the last-named count and under seven of the counts charging unlawful sales. He was sentenced to pay a fine and to be imprisoned under each of the eight counts; the time of imprisonment aggregating 300 days, and the fines $ 2600. The assignment of errors contains forty-eight specifications, which are presented under thirteen divisions in appellant's brief. After a very careful reading of the record and the briefs of counsel, we have reached the conclusion that the judgment of the trial court must be affirmed. It is due to the able and diligent counsel for appellant that some of their assignments of error be specifically noticed herein.

The warrant, besides commanding the arrest of the defendant, required the officer to seize "all signs, screens, bars, bottles, glasses, and other property used in the keeping and maintaining said nuisance." The sheriff actually seized the articles described in the warrant and was still in possession thereof at the time of the trial. The arrest of the defendant and the seizure of the property took place on July 17, 1897, and the defendant on the same day entered into a recognizance for his appearance in the district court. Thereafter a motion to quash the warrant was filed, on the ground that it commanded the doing of an unlawful act, that is, the illegal seizure of defendant's property. The motion to quash was overruled. As the warrant was sufficient in all other respects, we think that so far as the arrest of the defendant thereunder is concerned, the words describing the property to be seized may be regarded as surplusage which does not vitiate the whole warrant. Besides, we think the objection, so far as the validity of the arrest was concerned, was made too late.

The jurors were permitted to taste and smell the contents of bottles which had been seized by the sheriff in Eldred's place of business, and which were offered in evidence by the state. While it was clearly improper to transform jurors into witnesses in the manner stated (The State v. Lindgrove, 1 Kan.App. 51, 41 P. 688), yet the transaction cannot be declared reversible error, for the reason that the defendant did not object thereto.

It is claimed that the trial court, in its charge in respect to the particular sales on which the state had elected to rely assumed the facts in dispute as to such sales. We find there was no dispute that appellant was the proprietor of a place where drinks were sold; where a barkeeper was employed whose instructions were to say to customers that he had nothing but hop tea and cider to sell; where the articles called cider included two or three kinds of brandy, two kinds of wine, and at least one kind of whisky. The hop tea was sometimes sold in bottles, and sometimes pumped from kegs like beer kegs, which were kept in a refrigerator. The only question in the case was as to whether or not the drinks sold by the defendant were beer or other intoxicants. In referring to the election made by the county attorney as to particular sales, the court used language which taken alone would be subject to the criticism made by counsel; but taking the instructions as a whole, and in view of the testimony which was before the jury, we think the defendant was not prejudiced by the language of the court in respect to said sales. The instructions stated plainly and positively that the jury could not convict unless they found that ...