State v. Gomes

• Decision Date: 10 May 1899
• Citation: 9 Kan.App. 63,57 P. 262
• Parties: STATE, v. GOMES.
• Court: Kansas Court of Appeals

57 P. 262

9 Kan.App. 63

STATE, v. GOMES.

Court of Appeals of Kansas, Northern Department, Eastern Division

May 10, 1899

Syllabus

1. During the progress of a trial upon a complaint charging a misdemeanor, the defendant cannot, by willfully absenting himself, oust the justice of jurisdiction to render a judgment upon the verdict, and an appeal from such judgment to the district court by the defendant confers jurisdiction upon that court of the case and the person of the defendant.

2. The state, upon dismissing one court of a complaint charging several misdemeanors under the prohibitory laws, is not required to designate upon what specific sale it expected to rely for conviction upon the count it dismissed.

Appeal from district court, Jackson county; Louis A. Myers, Judge.

Lewis Gomes was convicted of violating the liquor law, and appeals. Reversed.

Crane & Woodburn, for appellant.

H. F Graham, Co. Atty., for the State.

OPINION

MAHAN P. J.

This is an appeal from a judgment of conviction for a violation of the prohibitory law. The complaint was first filed with a justice of the peace. During the progress of the trial, and before the state rested, the defendant and his counsel willfully absented themselves from the court, and during their absence the court proceeded with the trial, and received the verdict of the jury. The next morning the defendant and his counsel appeared in court, and urged their absence as a ground for arresting the judgment of the court. His motion was overruled, and he was sentenced to pay a fine of $200, and to be committed to the county jail for 30 days. He appealed to the district court. In that court the defendant moved his discharge for the reason that the district court had acquired no jurisdiction of his person or to try the offense, because the justice court had entered judgment without jurisdiction, by reason of his absence from that court, and hence the appeal gave the district court no jurisdiction. He also filed a plea of former acquittal, based upon the same facts. The court denied his motion to discharge, and overruled his plea of former acquittal. At the commencement of the trial in the district court, the county attorney dismissed as to the third count of the complaint whereupon the defendant moved the court to require the county attorney to designate what particular sale he dismissed with the third count of the complaint. This was likewise denied by the district court. The defendant then objected to the introduction of any evidence, upon the ground that the court was without jurisdiction to try the case, and that the erroneous proceedings of the justice of the peace amounted in law to an acquittal. At the conclusion of the state’s evidence, the defendant moved the court to require the county attorney to elect upon what particular sales he relied for conviction upon the first count of the complaint. The court announced that it would not require an election until the evidence was all in. Defendant then announced that he would introduce no evidence "under the circumstances." Thereupon the state made its election. The defendant thereupon moved the court for his discharge, for the reason that there was no election made until after the defendant had rested his case, which motion was denied. He then asked that he be discharged, for the reason that the sale relied upon by the state for conviction, under the first...