State v. Hughes

• Decision Date: 01 June 1896
• Docket Number: 390
• Citation: 3 Kan.App. 95,45 P. 94
• Parties: THE STATE OF KANSAS v. BILLY HUGHES
• Court: Kansas Court of Appeals

45 P. 94

3 Kan.App. 95

THE STATE OF KANSAS v. BILLY HUGHES

No. 390

Court of Appeals of Kansas, Northern Department, Eastern Division

June 1, 1896

Opinion Filed June 5, 1896.

MEMORANDUM.--Appeal from Brown district court; R. M. EMERY judge. Prosecution for violations of the prohibitory law. The defendant, Billy Hughes, was convicted. He appeals. Modified. The opinion herein, filed June 5, 1896, states the material facts.

Case remanded.

Jas Falloon, S. F. Newlon, and W. P. Bland, for appellant.

F. B Dawes, attorney general, and D. E. Reber, assistant attorney general for Brown county, for The State.

CLARK J. All the Judges concurring.

OPINION

CLARK, J.:

This is a prosecution for alleged violations of the prohibitory liquor law of this state. The information contained 11 counts, in the first 10 of which the defendant was charged with the illegal sale of intoxicating liquors, while in the eleventh count he was charged with keeping and maintaining a place where intoxicating liquors were illegally sold and kept for illegal sale, and where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage. After the state had introduced its evidence and rested, upon the demand of the defendant, the assistant attorney general, who was prosecuting on behalf of the state, announced the particular sales upon which the state would rely for a conviction. Subsequently the court instructed the jury:

"In determining the guilt or innocence of the defendant on the first 10 counts, you have the right to consider all the evidence introduced in the case, and all unlawful sales made by him or any one authorized by him, including those given in evidence on which the state has not relied for conviction, and from such evidence determine whether or not the defendant is guilty of making the sales on which the state has elected to rely; but you cannot convict the defendant on sales other than those on which the state has elected to rely."

The defendant duly excepted to the ruling of the court on his objection to the instruction so given, and the jury rendered a verdict of guilty on the first and eleventh counts, upon each of which the defendant was adjudged to pay a fine of $ 200, and be committed to the county jail for a period of 60 days. Under the ruling of this court in The State v. Marshall, 2 Kan.App. 792 (44 P. 49), the court committed prejudicial error in giving the instruction above quoted, and for this reason it will be unnecessary to consider some of the questions raised by the appellant in support of his contention that a new trial should have been awarded on the first count of the information.

The evidence is clear and uncontradicted that the building described in the information was a place where intoxicating liquors were unlawfully sold and kept for unlawful sale, and where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage. Under paragraph 2533, General Statutes of 1889, the keeper of such place was guilty of maintaining a common nuisance, and upon conviction, would be subject to the punishment prescribed by that section of the statute. This proposition is not controverted by the defendant, but he strenuously insists that there is not only an utter want of evidence to support the verdict of the jury that he was the keeper of such place, but that the evidence affirmatively shows that some other than himself had the entire charge of the building, and of the business therein transacted. The defendant testified that he owned the building referred to in the information, together with all the furniture therein, including the billiard and pool-tables, and the bar; that he purchased them about the 28th of December, 1894, at which time a saloon was being run there; that within a few days thereafter he rented the building and furniture to a man by the name of Parks, who conducted the saloon business until the latter part of February, "when he left, and went away"; that on March 6 following he (the defendant) rented the building and all the furniture therein, including the bar...