State v. Marshall

• Decision Date: 01 March 1896
• Docket Number: 389
• Citation: 44 P. 49,2 Kan.App. 792
• Parties: THE STATE OF KANSAS v. BEN. MARSHALL
• Court: Kansas Court of Appeals

44 P. 49

2 Kan.App. 792

THE STATE OF KANSAS v. BEN. MARSHALL

No. 389

Court of Appeals of Kansas, Northern Department, Eastern Division

March 1, 1896

Opinion Filed March 7, 1896.

MEMORANDUM.--Appeal from Brown district court; R. M. EMERY judge. Prosecution for violation of the prohibitory liquor law. Defendant, Ben. Marshall, was convicted. He appeals. Reversed in part, and in part affirmed. Opinion herein, filed March 7, 1896, states the material facts.

Judgment reversed.

A. B Crockett, and Ryan & Stuart, for appellant.

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

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

The appellant, Ben. Marshall, was charged by information filed in the district court of Brown county with certain violations of the prohibitory liquor law. The information consisted of seven counts each charging an unlawful sale, and an eighth count charging the defendant with maintaining a nuisance by keeping a place where intoxicating liquors were sold and kept for sale in violation of law. Upon a trial had November 14, 1895, the jury found a verdict of guilty on the sixth and eighth counts, upon each of which the defendant was sentenced to pay a fine of $ 200 and be imprisoned in the Brown county jail 60 days. From this judgment the defendant has appealed to this court.

Several assignments of error are made upon the rulings of the court which directly affect the judgment on the sixth count. The first is as to the sufficiency of the evidence to show that the particular sale upon which the state elected to rely for a conviction was a sale of intoxicating liquor. It was made about the last of August, 1895. At the time of the arrest of the defendant, on September 7, 1895, the sheriff found at his place of business a room fitted up with a bar, ice-chest, and other appliances common to a saloon; and on the premises were three full kegs of beer, two jugs of whisky, partly full, one jug of "blackberry," a lot of beer and other glasses, and one beer keg, partly full, on tap in the ice- chest. A large number of witnesses were examined who testified to buying drinks and drinking at this place during the summer of 1895, up to shortly prior to defendant's arrest. During this time, so far as shown by the testimony, the beverage was drawn from a beer-faucet which protruded from the ice-chest. The drink called for was, as a rule, beer; the defendant usually responding that he had no beer, but that he had ginger ale, and thereupon would proceed to supply the wants of his customers by resorting to the unfailing supply with which the beer-faucet seemed to be connected. No one pretended on the trial that what he drank was ginger ale. He either claimed that he did not know what it was, or admitted, with apparent reluctance, that it looked and tasted like beer. Ed. Anderson, who testified to the sale relied upon for conviction on this count, said that what he drank resembled beer, and that it tasted as near like beer as what he had drunk for beer. Another witness, Cy. Daniels, testified that he was with Ed. Anderson at the time the sale was made; that he called for beer, and that the defendant said he had no beer, but had ginger ale. Daniels, however, did not recognize the liquid as beer. The defendant himself was a witness in the case, and denied that he had sold any intoxicating liquors to either of the witnesses who testified on behalf of the state; but neither he nor any other witness undertook to state what the beverage was which he had on tap in the ice-chest and which he supplied to these witnesses. No one pretends that he kept ginger ale on tap, or that he had a supply of it in any form at his place of business. Other witnesses testified that about this time the defendant furnished them with drinks from the same source, and that it was a "sample of beer," tasted like beer, and looked like beer. The keg of beer seized by the sheriff was apparently the only thing on tap in the ice-chest. Taking into consideration all the facts and circumstances surrounding and corroborating the testimony of the witness Ed. Anderson, we think the jury was fully warranted in saying that it was beer which was sold to these witnesses.

A further objection is made because the court did not...