State v. Goff

• Decision Date: 05 June 1899
• Docket Number: 178. [*]
• Citation: 61 P. 680,10 Kan.App. 286
• Parties: THE STATE OF KANSAS v. THOMAS F. GOFF, JR
• Court: Kansas Court of Appeals

61 P. 680

10 Kan.App. 286

THE STATE OF KANSAS v. THOMAS F. GOFF, JR

No. 178. ^[*]

Court of Appeals of Kansas

June 5, 1899

Decided June, 1900.

Appeal from Graham district court; C. W. SMITH, judge.

Judgment affirmed.

SYLLABUS

1. CRIMINAL LAW -- Defects in Information -- Waiver. Where a defendant in a misdemeanor case voluntarily enters into a recognizance for his appearance at a subsequent term without making any objection to the sufficiency of the warrant, the sufficiency of the information, or the verification thereof, he waives any supposed defects in the verification, or irregularity, if any, in the issuance of the warrant.

2. -- Refusal of Defendant to Testify -- Instructions. Where the defendant neglects or refuses to testify, it is not error for the court to refuse to instruct the jury: "The fact that the defendant did not testify in this cause should not be considered by the jury to affect his innocence or guilt."

3. -- Inapplicable Instructions. It is not error for the court to refuse to give an instruction, at the request of the defendant, which correctly states the law, where such instruction is not applicable to the testimony offered upon the trial.

4. -- Intoxicating Liquors -- Proof of Permit. In a prosecution under the prohibitory liquor law, it is not necessary that the prosecution in the first instance prove that defendant did not have a permit to sell intoxicating liquors for the excepted purposes.

5. -- Nuisance -- Instructions. It is error for a court to give an instruction which correctly states the law applicable to a nuisance, where such instruction permits the jury to find the defendant guilty of maintaining a nuisance by means other than those embodied in the complaint.

George W. Jones, for The State.

H. J. Harwi, and W. M. Roberts, for appellant.

OPINION

MCELROY, J.:

George W. Jones, county attorney of Graham county, on March 14, 1899, filed in the office of the clerk of the district court of that county an information charging Thomas F. Goff, jr., in seven counts, with the unlawful sale of intoxicating liquors, and in one count with maintaining a common nuisance under the prohibitory liquor law. The first count reads:

"I, the undersigned, county attorney of said county, in the name, by the authority and on behalf of the state of Kansas give information that Thomas F. Goff, jr., at the county of Graham, in the state of Kansas, on the 3d day of November, A. D. 1898, without having procured from the probate judge of said county any permit to sell intoxicating liquors, did then and there unlawfully sell and barter spirituous, malt, vinous, fermented and other intoxicating liquors, contrary to the statutes in such cases made and provided and against the peace and dignity of the state of Kansas."

The other six counts of the information were the same, except the date of the sale. The eighth count reads:

"And I do further give the court to understand and be informed, that the said Thomas F. Goff, jr., at and in a certain two-story frame building situated on the south side of Main street, in the city of Hill City, Kan., on the east twenty-one feet of lot 19, in block 18, in the original town (now city) of Hill City, in said Graham county, in the state of Kansas, did, at the respective dates of the several offenses hereinbefore charged, then and there have and keep in his possession there, and then and there used and employed the same, in and about and for the commission of the said offenses, and then and there did at said dates, and still does, there keep and have in his possession for the purpose of being and employing, and uses and employs the same, in and about and for the purpose of keeping there an unlawful place for the unlawful sale and keeping for unlawful sale of intoxicating liquors to be used as beverages, and not for medical, scientific nor mechanical purposes, certain property, intoxicating liquors and vessels in his possession kept, to wit, certain barrels, boxes, kegs, jugs, and bottles."

The information was verified before the clerk of the district court as follows:

"STATE OF KANSAS, GRAHAM COUNTY, SS.: I do solemnly swear that the allegations set forth in counts numbered first, second, third and eighth in the within information are true. So help me God.

T. J. GARNETT."

"STATE OF KANSAS, GRAHAM COUNTY, SS.: I do solemnly swear that the allegations set forth in the within information are true, to the best of my information and belief. So help me God.

GEORGE W. JONES, County Attorney."

A warrant was duly issued, and placed in the hands of the sheriff. The defendant was arrested, and afterward, on the 15th day of March, 1899, entered into a recognizance for his appearance at the next term of court, and was released from custody under the warrant of arrest. The defendant, on May 15 thereafter, filed his motion to quash the warrant of arrest for the reasons: (1) That the warrant of arrest was not issued upon probable cause, supported by the oath or affirmation of any person; and (2) that the warrant of arrest, so far as it relates to the search and seizure of property, is void, for the reason that it does not particularly describe the property to be seized. The motion to quash was overruled. The defendant thereafter moved the court to quash the information for the reasons: (1) That the facts stated do not constitute a public offense; (2) misjoinder of offenses; (3) that the information is bad for duplicity; (4) that the eighth count does not particularly describe the property to be seized; and (5) that the fourth, fifth, sixth and seventh counts are not supported by the oath or affirmation of any person. This motion was overruled. The defendant was arraigned, refused to plead, and the court ordered a plea of not guilty to be entered. A trial was had at the May term, 1899, which resulted in the conviction of the defendant upon the first, second, third, fourth, fifth, seventh and eighth counts of the information. The defendant filed motions for new trial and in arrest of judgment, which were overruled. The court sentenced the defendant to pay a fine of $ 100; that he be confined in the county jail of Graham county for thirty days under each count of the information upon which conviction was had; that he pay the costs of the prosecution; and that he stand committed to the jail until the fine and costs be paid. The defendant prosecutes an appeal. The appellant insists that the proceedings in the trial were erroneous, as follows:

1. The first, second and third assignments of error present but one question; that is upon the sufficiency of the verification to the information. The defendant was arrested on March 15, 1899, at which time he voluntarily entered into a recognizance for his appearance at the next regular term of the district court for Graham county and was released. The motion to quash the warrant was filed May 15, 1899. The defendant was not under arrest at the time he made his motion to quash the warrant. The warrant had spent its force and had been returned by the sheriff. He was no longer held by reason of the warrant. The defendant was under recognizance to appear at court, but he entered into that voluntarily. When he entered into a recognizance for his appearance, without making any objection to the sufficiency of the warrant, the sufficiency of the information, or the verification thereof, he waived the supposed defects in the verification, and the irregularity, if any, in the issuance of the warrant. (The State v. Longton, 35 Kan. 375, 11 P. 163; The State v. Stredder, 3 Kan.App. 631, 44 P. 34.)

2. It is contended that the court erred in refusing to give instructions requested by the defendant. The instructions requested by the defendant of which complaint is made are as follows:

"(1) The fact that the defendant did not testify in this cause should not be construed by the jury to affect his innocence or guilt."

This instruction presents a question which has been largely considered by the courts of various states. In the Encyclopedia of Pleading and Practice (volume 11, page 351), it is said:

"In some jurisdictions it is made the duty of the court to instruct the jury that no inference of the defendant's guilt is to be drawn from his failure to testify, and it would seem that no request for such an instruction is necessary; in others, the giving of such an instruction is proper, but not necessary, in the absence of a request therefor. In some jurisdictions, because of the peculiar wording of the statutes, it has been held erroneous to refuse an instruction that no presumption of guilt should be indulged against the defendant on account of his failure to testify, and in others it has been held...