State v. Gendusa
| Decision Date | 12 February 1927 |
| Docket Number | 26,589 |
| Citation | 253 P. 598,122 Kan. 520 |
| Parties | THE STATE OF KANSAS, Appellee, v. MIKE GENDUSA, Appellant. |
| Court | Kansas Supreme Court |
Decided January, 1927.
Appeal from Crawford district court, division No. 1; DANIEL H WOOLLEY, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
1. INTOXICATING LIQUORS -- Unlawful Possession -- Evidence -- Testimony that Complaints Made to Deputy Constable. In a prosecution under the prohibitory law the admission of testimony that complaints had been made to deputy constables of the defendant's home with reference to the violation of that law is held to have been erroneous and prejudicial.
2. WITNESSES -- Cross-examination -- Developing Ulterior Financial Motive. Where in a prosecution under the prohibitory law the evidence against the defendant was given by five deputy constables who conducted a raid upon his home, the refusal to permit cross-examination of them intended to develop an ulterior financial motive on their part is held to have been materially erroneous.
3. INTOXICATING LIQUORS--Unlawful Possession--Instruction--Extent of Proof. In a prosecution on a charge of having possession of intoxicating liquor an erroneous instruction that in order to secure a conviction the state was only required to prove that such liquor was found on the defendant's premises is held not to have been cured by a statement in another sentence that to convict it was necessary for the state to show that intoxicating liquor was found on the premises and that the defendant knew it was there and that it was had or kept there by him.
4. SAME--Trial Generally. Other trial rulings are held not prejudicially erroneous.
John P. Curran, A. B. Keller and George R. Malcolm, all of Pittsburg, for the appellant.
Charles B. Griffith, attorney-general, Roland Boynton, assistant attorney-general, and Ray R. Preyer, county attorney, for the appellee.
Mike Gendusa appeals from a conviction on a charge of having intoxicating liquor in his possession. The case went to the jury upon the count on which this conviction was had and also upon a count charging the maintenance of a liquor nuisance, on which there was an acquittal.
There was evidence tending to show these facts: Five deputy constables raided the defendant's home. They found a half barrel of wine covered with hay in the barn, one bottle partly filled with whisky lying between the house and a bench, and another in a tool shed some 50 or 75 feet from the house. The defendant's wife was seen to pour some whisky out of a bottle as the raiders entered.
The defendant and his wife insisted there was no whisky on the place, but explained the contents of the barrel by saying it contained what was called "sour," produced from grapes and used for making cheese. They presented the theory that the deputy constables had planted the whisky bottles.
1. Two of the deputy constables were permitted over objection to testify that complaints had been made to them of the defendant's home with reference to the violation of the prohibitory law. Error is assigned because of this ruling. In a prosecution under the nuisance clause, where evidence has been given that the place in question was in fact one where the prohibitory law was violated, testimony may be properly admitted showing it was generally reputed to be such, as tending to show the owner must have known of the fact. (State v. Brooks, 74 Kan. 175, 85 P. 1013.) But the fact of complaints having been made to officers does not establish general reputation, and is not equivalent to it, and is not admissible in evidence. (See State v. Adler, 119 Kan. 757, 241 P. 119.) As in the case just cited, the evidence doubtless was intended to apply to the nuisance count, but the jury not having been so advised, may have based the conviction on the possession count partly upon it. There, however, similar evidence had already gone in without objection and the fact that some one was keeping intoxicating liquor at the place in question for sale, and that sixty-five gallons of whisky was found there, were definitely established, the controversy being whether it was in the possession of the defendants or of some one else. Here the defendant contended that the liquid in the barrel was not intoxicating and that the whisky was brought in by the officers. It is not clear that no prejudice resulted from the incompetent evidence.
2. Counsel for the defendant, on cross-examination of each of the five deputy constables, evidently in the hope of eliciting answers tending to impeach their veracity by showing a financial motive for giving false testimony, asked a number of questions such as the following, to all of which objections were sustained:
"Have you received any fees for raids on these liquor cases other than the regular fees allowed to the deputy constable?"
"Have you been paid any money from any other source other than through the court for making these raids?"
"I will ask you if it isn't a fact...
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...v. Jones, 78 Cal.App. 554, 248 P. 964; Anderson v. United States, 18 F.2d 404; People v. Jabine, 324 Ill. 55, 154 N.E. 430; State v. Gendusa, 122 Kan. 520, 253 P. 598; Little v. Commonwealth, 221 Ky. 696, 299 S.W. 563; People v. Thompson, 238 Mich. 171, 213 N.W. 159; Parkinson v. State, 145......
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