State v. Foren
| Decision Date | 10 October 1908 |
| Docket Number | 15,804 |
| Citation | 97 P. 791,78 Kan. 654 |
| Parties | THE STATE OF KANSAS v. T. F. FOREN |
| Court | Kansas Supreme Court |
Decided July, 1908.
Appeal from Leavenworth district court; JAMES H. GILLPATRICK, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. INTOXICATING LIQUORS--Seizure--Forfeiture--Time of Trial. In a prosecution for maintaining a common nuisance under the act prohibiting the unlawful sale of intoxicating liquors the trial to determine if the property seized by the sheriff under the warrant should be forfeited may be had at the time fixed for answer in the notice served upon the defendant, or at any other time to be fixed by the court in the exercise of judicial discretion. (Gen. Stat 1901, § 2495.)
2. PRACTICE, DISTRICT COURT--Judicial Discretion. This discretion should be exercised reasonably, in accordance with orderly judicial procedure, but where it is not shown that the court, in making an order complained of, failed to apply the rules and analogies of the law to the facts found upon fair judicial consideration of the evidence there is no abuse of discretion justifying the reversal of the order, although a contrary ruling would not have been erroneous or unjust.
Fred S. Jackson, attorney-general, Charles D. Shukers, special assistant attorney-general, and Lee Bond, county attorney, for The State.
Floyd E. Harper, for appellee.
This was a prosecution for the unlawful sale of intoxicating liquors and for keeping and maintaining a common nuisance, commenced by the attorney-general in the district court of Leavenworth county on the 20th of August, 1907. The information was filed by Charles D. Shukers, special assistant attorney-general, who caused the warrants to issue in this and several other cases of the same nature at that time. Mr. Shukers left Leavenworth on the evening of August 21, at which time none of the warrants had been returned.
On or about August 23 the sheriff and county attorney of Leavenworth county called on the attorney-general in his office at Topeka relative to these prosecutions, and during the interview the attorney-general directed the county attorney to attend to the cases and to keep him informed of all procedure therein. The sheriff's return showed that certain property had been seized, as commanded in the warrant, and thereupon, on August 26, a notice was issued by the clerk, as required by section 2495 of the General Statutes of 1901, describing the property so taken, and notifying the defendant and all persons claiming an interest in the property to appear in the district court-room on September 7 and answer the complaint made against such property and show cause why the same should not be adjudged forfeited and destroyed.
On September 7 the defendant, T. F. Foren, filed his answer, consisting of a general denial, and demanded an immediate trial of the ownership of the property. One Mike Kirmeyer filed his interplea and answer, and asked the court therein to fix a time for a trial of the property, but took no other action in the case. The county attorney requested a continuance until such time as he could communicate with the attorney-general and subpoena the witnesses, which request was by the court refused and the trial ordered to proceed. The county attorney thereupon offered in evidence the return of the sheriff on the warrant, showing the schedule of property seized, which was: "1 front bar; 1 back bar; 2 dozen glasses; 1 ice-box." The defendant offered no evidence, and thereupon the court rendered a judgment finding the defendant "not guilty as charged," and ordered the property returned to him. The attorney-general filed a motion for new trial on September 10, 1907, which was by the court denied. Exceptions were duly taken by the attorney-general, who brings the case here for review.
An affidavit of the assistant attorney-general was read in support of the motion for a new trial, from which it appeared that when he left Leavenworth on the 21st of August the warrant had not been returned, and, as the notice could not then be issued, he requested the clerk of the court to furnish him with information concerning any proceedings taken in the case, which the clerk did by mailing to him, on the 29th day of August, a statement, as follows:
This was duly received at the attorney-general's office, and it does not appear that any further inquiry concerning the notice or the date fixed for answer was made by that officer or his assistant. The clerk testified on the hearing of the motion that after mailing this statement he called up the attorney-general's office and asked the assistant, over the telephone, if it was what was wanted, and that he received an answer that it was satisfactory.
Upon the foregoing facts it is urged that the action of the court in refusing the application of the county attorney to postpone the trial to a later date, and in proceeding to trial on the answer day, was an abuse of discretion. The statute is as follows:
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Chapman v. Boynton
...of taxicab held lawful, Allison v. Hern, 102 Kan. 48, 169 P. 187; time for hearing as to forfeiture of property stated, State v. Foren, 78 Kan. 654, 97 P. 791; place of seizure must be within jurisdiction of court, State v. Woodland, 89 Kan. 641, 132 P. 204; see, also, State v. Queen, 103 K......
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...are reluctant to disturb it in the absence of its abuse. See Johnson v. Burns, 160 Kan. 104, 159 [174 Kan. 95] P.2d 812; also State v. Foren, 78 Kan. 654, 97 P. 791; and also Deeds v. Deeds, 108 Kan. 770, 196 P. 1109. There is no evidence here that undue hardship will result if partition be......
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Saucedo v. Winger, 66047
...by a reviewing court, for to do so would be to deny the right to exercise the discretion given by the law itself." State v. Foren, 78 Kan. 654, 658-59, 97 P. 791 (1908). The abuse of discretion " 'is really a discretion exercised to an end or purpose not justified by, and clearly against, r......
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...found after weighing and examining the evidence; to act upon a fair judicial consideration, and not arbitrarily.' Citing State v. Foren, 78 Kan. 654, 97 P. 791; Larsen v. Bliss, 43 N.M. 265, 91 P.2d 811, the Court further 'An abuse of discretion is said to occur when the court exceeds the b......