State v. Ford
| Decision Date | 07 February 1925 |
| Docket Number | 25,810 |
| Citation | 117 Kan. 735,232 P. 1023 |
| Parties | THE STATE OF KANSAS, Appellant, v. REESE FORD, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1925
Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
1. LIQUOR LAW--Conviction on Two Counts--Possession of Liquor--Sale of Liquor--No Double Jeopardy. A conviction upon one count for having possession of intoxicating liquor and upon another for the sale of the same liquor does not violate the constitutional provision against double jeopardy for the same offense.
2. SAME--Double Jeopardy--Issue Not Presented on Motion in Arrest of Judgment. Where the information does not show on its face the facts on which is based a claim that a conviction has been had upon two different counts for the same offense, such claim cannot be properly presented by a motion in arrest of judgment.
Charles B. Griffith, attorney-general, B. W. Berg, county attorney and W. B. Grant, deputy county attorney, for the appellant.
Charles D. Ise, Charles Bucher, and Barney Bucher, all of Coffeyville, for the appellee.
Reese Ford was convicted on two counts of an information, one charging him with having possession of intoxicating liquor, the other with selling it. According to the evidence a witness called on the defendant at his home and asked if he had some whisky. He answered that he could get some, and under an arrangement then made he brought a jug of whisky to the witness in his car the next morning, which he sold to him. There was no evidence of his having had any other liquor in his possession. The defendant filed a motion in arrest of judgment on the first count on the ground that possession of liquor was an ingredient of the offense of selling it, of which he was convicted--was necessarily included within it, and therefore he could not be punished for both offenses. The motion was sustained, and the state appeals.
1. A conviction of one offense is a bar to a conviction of another which is a lower degree of the same offense or a necessary ingredient in it or necessarily included within it. (R. S. 62-1444; 16 C. J. 271.) Assuming that in order for the defendant to be guilty of the sale of the jug of whisky it was necessary for him to have had such control of it at the moment of delivery as to render him guilty as well of having it in his possession, it does not follow that the offense of possession of which he was found guilty was an ingredient of the offense of making the sale. As a practical matter, the defendant in order to carry out the deal may have been obliged to transport the liquor some distance and therefore to have had it in his possession for a considerable period, but possession for that period was not legally essential to a sale. The offense of having it in his possession was complete before the time for delivery had arrived.
A defendant who was convicted both of having in his possession and of selling a quart bottle of whisky has already raised the question here presented. In answer to his contention the court said:
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Chapman v. Boynton
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