State v. Lord

• Decision Date: 01 December 1898
• Docket Number: 618
• Citation: 8 Kan.App. 257,55 P. 503
• Parties: THE STATE OF KANSAS v. ARCH. LORD
• Court: Kansas Court of Appeals

55 P. 503

8 Kan.App. 257

THE STATE OF KANSAS v. ARCH. LORD

No. 618

Court of Appeals of Kansas, Northern Department

December 1, 1898

Opinion Filed December 15, 1898.

Appeal from Shawnee district court; Z. T. HAZEN, judge. Affirmed.

Judgment affirmed.

L. C Boyle, attorney-general, and A. P. Jetmore, county attorney for appellee.

Safford & Williams, for appellant.

OPINION

MCELROY, J.:

The appellant, Arch. Lord, was convicted under section 39 chapter 101, General Statutes of 1897 (Gen. Stat. 1889, P 2533), of keeping and maintaining a common nuisance. The section under which he was prosecuted reads:

"All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of any of the provisions of this act, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this act, are hereby declared to be common nuisances, . . . and the owner or keeper thereof shall upon conviction be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than ninety days."

The appellant was sentenced to thirty days in jail and to pay a fine of $ 100 and costs, and to stand committed until the fine and costs were paid, from which conviction and sentence he appeals. He contends that the judgment of the trial court should be reversed for three reasons, which we will consider in the order presented.

First, it is claimed that the verdict of the jury is not supported by the evidence and is contrary thereto. The evidence shows that the building designated in the complaint consisted of two rooms on the first floor, and a basement. The front room on the first floor was used as a cigar store, the rear room as a billiard hall. In the basement were a counter or bar, made of planed boards, a beer pump, some glasses, a couple of gambling tables, some chairs, and beer. There were two persons behind the bar supplying patrons with beer which was drunk on the premises. The two men behind the counter, or bar, on the afternoon of Tuesday, the day of September, 1897, sold and dispensed beer over the counter, which was drunk by fifteen or more persons. The basement room was therefore a place where intoxicating liquors were sold to customers; where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage; and was fitted up with the usual paraphernalia of a "joint," or saloon, including a bar, with beer pump attached, from which beer was dispensed to numerous customers who were buying and drinking it. The contention is made that the appellant was not the person who sold the beer, therefore not the keeper of the place. The basement was reached by an inside stairway from the billiard hall. E. B. Wood, a barber, testified that he had known Lord for about a year; knew where his place was, and rented of him the privilege of placing a barber chair in his establishment. Two witnesses, Pond and McFall, testified that they each purchased, on the date in question, beer from Lord; that he sold beer to several other persons at the same time and place; and that he was there in person behind the counter or bar, with his hat and coat off, waiting on customers; that one of the witnesses addressed Lord by name; that the place was generally known as "Lord's place"; and that there was one other person behind the counter also waiting on customers. These witnesses both testified that on the afternoon in question Lord was clean shaven, with a few days' growth of mustache. The defendant called a witness, Wood, who testified that he was a barber; that he had put his barber chair in Lord's place about the 10th of October, 1897, and kept the chair there six weeks; that Lord was a customer of his; and that during that time he wore a heavy mustache. A witness, McNair, who testified that he had known Lord for five years, said that at the date in question he had a heavy mustache. It appears that the testimony was conflicting on the question of whether Lord wore a mustache at that time. This controversy over the mustache seems to have been far-fetched, and of little weight in determining any material issue in the case. The jury may have believed the defendant had a much heavier mustache than the state's witnesses described, yet the matter was of no importance if they believed him to be the keeper of the place.

The contention is further made that the beer sold was not intoxicating. The witnesses Pond and McFall both testified that the beer they drank did not intoxicate them or make them drunk; that they bought and drank three glasses while they were in the place; and that several other persons bought and drank beer during the same time. Beer is presumed to be intoxicating. Proof of a sale of beer is proof of a sale of intoxicating liquor within the meaning of the law. It is not necessary for the state in the first instance to prove that beer is intoxicating, for it is presumed in law to be intoxicating until the contrary is shown. If we allow that the jury found all that the defendant claimed to show concerning the beer being non-intoxicating, there is still plenty of evidence to support the verdict. While the testimony of Pond and McFall would tend to show that the beer they drank was not intoxicating, there is no evidence tending to show...