State v. Erhart

• Court: Kansas Supreme Court
• Writing for the Court: HARVEY
• Citation: State v. Erhart, 272 P.2d 1097, 176 Kan. 589 (Kan. 1954)
• Decision Date: 06 July 1954
• Docket Number: 39396,Nos. 39395,s. 39395
• Parties: STATE v. ERHART. STATE v. THRASHER.

Page 1097

272 P.2d 1097

176 Kan. 589

STATE v. ERHART.

STATE v. THRASHER.

Nos. 39395, 39396.

Supreme Court of Kansas.

July 6, 1954.

Rehearing Denied Oct. 15, 1954.

Syllabus by the Court.

Examining the record of an action in which defendants were prosecuted for selling cereal malt beverages on Sunday and for having alcoholic liquor in a place licensed for the sale of cereal malt beverages it is held: (1) The action was properly prosecuted under 41-2704 of the 1951 Supp. to G.S. 1949; (2) the court did not err in the instruction given; and (3) the county attorney in his closing argument to the jury did not violate G.S. 1949, 62-1420.

Elmer Hoge, Overland Park, argued the cause and was on the briefs for both appellants, and Lyndus A. Henry, Overland Park, was with him on the briefs for appellant in case No. 39,395.

James H. Bradley, County Atty., Olathe, argued the cause, and Harold R. Fatzer, Atty. Gen., and Paul E. Wilson, Asst. Atty. Gen., were with him on the briefs for appellee.

HARVEY, Chief Justice.

These are criminal cases. Since the appellants were prosecuted under one information and since the legal questions raised by them in their separate appeals are identical the cases may be disposed of in one opinion. The information was in two counts. Each count charged both of the appellants in count one with the possession of alcoholic liquors on premises licensed for the sale of cereal malt beverages; count two, the sale of cereal malt beverages on Sunday. The offenses were charged to have been committed on September 6, 1953, which was a Sunday. Upon being arraigned each of the defendants entered a plea of not guilty. When the case was called for trial the county attorney made the opening statement and counsel for defendants asked the state to elect under which statute the prosecution was laid and the county attorney elected to proceed under 41-2704 of the 1951 Supp. to G.S. 1949, the pertinent parts of which read as follows:

'In addition to the requirements of this act the board of county commissioners of any county of the state of (or) the governing body of any city may prescribe hours of closing, standards of conduct, and rules and regulations concerning the moral, sanitary and health conditions of the places licensed and may establish zones within which no place of business may be located not inconsistent with the provisions of this act: Provided, That no cereal malt beverages may be sold * * * on Sunday * * *. No person shall have any alcoholic liquor in his possession while in said place of business. G.S. 1949, § 41-2704; L. 1951, ch. 302, § 1; June 30.' Emphasis supplied.

Defendants moved to be discharged upon the ground that the section relied upon by the state is not a penal section. For the penalty the state relied upon G.S. 1949, 41-2711, which is a part of the same act above mentioned and which in substance provides:

'Any person violating any of the provisions of this act shall be deemed guilty of a misdemeanor * * *.'

and fixes the punishment. The defendant's motion to be discharged was denied and the trial proceeded with the result that the defendant Erhart was found guilty on both counts of the information and defendant Thrasher was found not guilty on count one but guilty on count two. In the course of the trial the court instructed the jury the statute under which the state of Kansas prosecuted this action provides in substance:

'No cereal malt beverage may be sold on Sunday and no person shall have any alcoholic liquor in his possession while in a place of business in which the sale of cereal malt beverage has been licensed.'

Each of the defendants filed a motion for a new trial which was considered by the court and overruled. These appeals followed.

The appeals present only questions of law. No transcript of the testimony has been furnished. It appears the premises were searched by officers under a search warrant on Sunday, September 6, 1953. The officers making the search found the application of the Sunflower Veterans Club of Sunflower, Kansas, for a cereal malt beverage license on which the name and signature of the defendant Randolph H. Erhart appeared. They also found a number of bottles of whiskey as well as cases of beer on the premises. These were all introduced in evidence. Also in the cross examination of Jack L. Patterson, a witness called by the state who testified that he was chairman of the operating committee of the Sunflower Veterans Club at the time of the approval of the cereal malt beverage license, defendant introduced a contract which named Erhart as the manager of the club and prescribed his duties.

In this court the appellants raised three legal questions:

First, that the court erred in overruling their motion to be discharged. The point is not well taken. It is true that 41-2704 gives the board of county commissioners or the governing body of the city some authority to include in the license for the sale of cereal malt beverage hours of closing, standards of conduct, and rules and regulations concerning the moral, sanitary and health conditions of the places licensed and to establish zones within which no place of business may be located not inconsistent with the provisions of this act; but it also contains positive legislative directions that no cereal malt beverages may be sold on Sunday; and further provides no person shall have any alcoholic liquor in his possession while in said place of business. These were positive declarations of the legislature which the board of county commissioners or the governing body of the city could not modify.

This is the first case which has reached this court involving the violation of 41-2704. We have had two cases involving the violation of 41-2708 which authorizes the board of county commissioners and the governing body of any city to cancel licenses previously issued for the sale of cereal malt beverages for any one of a number of reasons stated in subsections, one of which reads:

'For the sale or possession of or for permitting any person to use or consume upon or in said premises alcoholic liquor as defined by the laws of the state of Kansas relating thereto. * * *'

This section contained no penal provision but for that the state relied upon 41-2711. The first of these cases was State v. Wilson, 169 Kan. 659, 220 P.2d 121, where the...