State v. Lindgrove

• Decision Date: 01 May 1895
• Parties: THE STATE OF KANSAS v. NELS LINDGROVE
• Court: Kansas Court of Appeals

41 P. 688

1 Kan.App. 51

THE STATE OF KANSAS v. NELS LINDGROVE

Court of Appeals of Kansas, Northern Department, Central Division

May 1, 1895

Opinion Filed September 18, 1895.

MEMORANDUM.--Appeal from Jewell district court; CYRUS HEREN judge. Prosecution brought by The State against Nels Lindgrove, charging him with a violation of the prohibitory liquor law. Judgment for The State. The defendant appeals. Reversed. The facts are sufficiently stated in the opinion filed September 18, 1895.

Judgment reversed and case remanded.

T. S. Kirkpatrick, and Ira F. Hodson, for appellant.

F. B. Dawes, attorney general, and M. R. Sutherland, for The State.

GILKESON P. J. All the Judges concurring.

OPINION

GILKESON, P. J.:

This was a criminal prosecution brought by The State against Nels Lindgrove, under the provisions of the prohibitory law, charging the defendant with keeping and maintaining a common nuisance. The information as originally filed, and upon which the first trial was had, contained two counts, and two verdicts were rendered therein, viz.: "Not guilty as to the first count, and guilty as to the second count." The warrant issued in this action contained what is commonly called the "search and seizure clause," and certain articles were by the sheriff taken into his possession, and held subject to the order of the court. The verdict of guilty was set aside and a new trial awarded upon the second count in said information. The case was again tried by the court and jury, November 13, 1894, and the defendant was found guilty and adjudged to pay a fine of $ 150 and costs of suit, and was ordered to stand committed to the county jail until such fine and costs were paid. The defendant insists that in the proceedings in the trial there were errors as follows: (1) That the seizure made in this action is not authorized by the section of the statutes under which he was convicted. (2) That the court erred in overruling the defendant's motion for a return of the barrels and bottles seized. (3) That the court erred in overruling the defendant's motion to require the state to make and file a bill of particulars with its information. (4) That the court erred in permitting the introduction as evidence the contents of the bottles seized, and permitting the jury to taste or smell thereof. (5) That the court erred in refusing certain instructions. (6) That the court erred in overruling defendant's motion in arrest of judgment. We will consider the assignments of error in the order presented.

I. The defendant contends that the seizure in this case is not authorized by P 2533, General Statutes of 1889, but admits that P 2543 authorizes such seizure. The distinction sought to be made is that this defendant having been charged with maintaining a nuisance, as he claims under said P 2533--that being the only section of the law relating thereto--a search and seizure can only be made in compliance with that section, which, he contends, is after judgment by a court of competent jurisdiction, finding such a place to be a nuisance. This contention arises, we think, from a misconception of the statutes. The information in this case charges an offense against the provisions of the prohibitory law, and the records show that P 2543 has been fully complied with, which provides:

"If the testimony so taken discloses the fact that an offense has been committed against any of the provisions of this act, . . . thereupon a warrant shall issue for the arrest of the person or persons named in such information, as in other criminal cases, and in addition thereto shall command the officer to whom it may be directed to seize and take into his custody any and all intoxicating liquors, vessels and bottles containing the same, . . . subject to the order of the court."

And further provides:

"And if upon the trial of such person he shall be convicted of violating any of the provisions of this act, the court shall order, as a part of the judgment, in addition to the penalty herein provided, that the officer having the custody thereof shall publicly destroy all such property," etc.

The search and seizure had in this case are fully authorized by law.

II. The defendant contends that the court erred in overruling his motion for the return of the property seized. This contention is wholly untenable, and we do not think that the defendant presses it with any seriousness. The seizure in this case being valid, and the warrant directing the sheriff to hold the property seized until the further order of the court, we can see no reason, nor is there any urged by counsel, why the property should be returned until after a trial had been had, and the court, by order, makes disposition of it. The defendant, having been granted a new trial, was in the same position, when this motion was made, as when first arrested, and he cannot be heard to complain of the retention of the property, at least, until some action has been had in the proceedings under which it was seized. The granting of this motion at this time might have the effect of defeating the very end for which the seizure was made, and might deprive the state of material assistance in securing a conviction by depriving it of the only evidence within its control to show that the place charged was a place where intoxicating liquors were kept and stored.

III. The defendant contends that the court erred in overruling his motion to require the state to make and file a bill of particulars with its information. We think that some of the reasons urged by counsel bring this case within that class of cases in which the court might, in its discretion, require the prosecution to file a bill of particulars.

IV. The defendant contends that the court erred in permitting the jury to taste or smell the contents of the bottles seized in this action. In this, we think the court erred. It is well settled that a juror cannot give a verdict founded on his own private knowledge, and this rule is founded in reason and justice; for it could not be known whether the verdict was according to, or against, the evidence, as it is very possible that the private grounds of belief might not amount to legal evidence. If such evidence were to be privately given by one juror to the rest it would want the sanction of an oath. The juror cannot be subjected to cross- examination; and if, therefore, a juror knew any facts material to the issue, he ought to be sworn as a witness. (1 Starkie Ev. 471, 478.) "The verdict of a jury must be rendered solely upon the legal and open testimony in the cause." (Pleasant v. The State, 13 Ark. 360.) One of the material facts to be proven in this case, and so claimed by the state, is that the defendant kept a place where persons resorted for the purpose of drinking, as a beverage, intoxicating liquors. It was incumbent, therefore, upon the state to prove by legal testimony whether the liquor or, as the state insists, "beer," so kept by the defendant was intoxicating, and this should have been proven by evidence, oral or written.

"It is true that the jury have the advantage of instruction. They may, in the discretion of the court, if convenient, and under proper custody (if by so doing they can better understand the testimony), be allowed to view the place of the alleged homicide. They may be allowed to inspect the instrument of homicide. The appearance of the different witnesses is matter for their observation. But in all such cases, the inspection or observation is not testimony, but comes in aid of the testimony. So, proof of venue is a material fact, and the omission of it is fatal, though every juror may know the offense was committed in the county in which trial is being held. It would not be contended for a moment that the jury could say from their own private knowledge that the venue was proven, without some testimony showing it. Nor could one, two, or more of the jurors be permitted to communicate to the rest their knowledge as to the venue." (Pleasant v. The State, supra.)

And when the court in this case permitted the jury to taste and smell the contents of the bottles, they, for the purposes of this case, ceased to be jurors, and should have been sworn as witnesses. The testimony in this case discloses that some, only, of the jury tasted or smelled of the contents of the bottles, and those who did must have communicated the result of their research to those who did not, in order that the others might know what they did; or if they did not, then some of the jurors must have rendered their verdict upon their own personal, private...