State v. Guettler

• Decision Date: 09 January 1886
• Citation: 9 P. 200,34 Kan. 582
• Parties: THE STATE OF KANSAS v. H. GUETTLER
• Court: Kansas Supreme Court

9 P. 200

34 Kan. 582

THE STATE OF KANSAS v. H. GUETTLER

Supreme Court of Kansas

January 9, 1886

Appeal from Dickinson District Court.

PROSECUTION for a violation of the prohibitory liquor law. From a judgment against him at the February Term, 1884, the defendant Guettler appeals. The opinion states the facts.

Judgment reversed and remanded.

J. R Burton, for appellant.

S. B Bradford, attorney general, for The State; Edwin A. Austin of counsel.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

H. Guettler was prosecuted before the district court of Dickinson county for violating the prohibitory liquor law. The information contained five counts, and a verdict of guilty was given under each of them. Accordingly, the court rendered judgment upon each conviction, sentencing the defendant to pay a fine of $ 100 and the costs of prosecution for each offense, and requiring him to enter into a bond to the state of Kansas in the sum of $ 1,000 for his good behavior, and conditioned that he would not directly or indirectly sell or give away, or keep for sale or barter, any intoxicating liquors within the state of Kansas for a space of two years from the date of conviction, and that he stand committed to the jail of the county until the bond was given. A motion for a new trial was made, and overruled; whereupon the plaintiff appeals to this court, alleging several errors in the proceedings in the district court.

The principal complaint of the appellant is, that the election of the county attorney as to the particular transaction or sale on which he would rely for a conviction was not sufficiently definite and certain. When the testimony of the state had been offered, the defendant moved the court to require the state to make an election under each count. The motions were granted, and elections were accordingly made. The defendant was not satisfied with the elections as made, and asked the court to require the county attorney to make them more certain, which motion was overruled. While exception was taken to the election under each count, those made under the first, fourth and fifth seem not to be much questioned by the defendant in argument, and when taken in connection with the testimony must be regarded as sufficiently definite. The election made under the second count was in this language: "I rely for conviction of the defendant under the second count in the information on the first sale to George Hubbard, as testified to by George Hubbard." The testimony of George Hubbard, so far as it relates to this question, is as follows:

"I have got beer there of the defendant several times. The first time I got beer there I bought two dollars' worth of tickets. He would not let me have any kind of drink unless I first bought a ticket. It was only five minutes after I got the ticket until I got the beer. I could get beer or any kind of drink on my ticket there, from a single glass up to the amount of my ticket. I got whisky sometimes on my ticket. Not very often. I generally got beer."

The appellant contends that it was the duty of the county attorney, in his election, to name the kind of liquor the sale of which was relied upon for a conviction, and that the...