State v. Miller
| Decision Date | 11 May 1901 |
| Docket Number | 12,107 |
| Citation | 63 Kan. 62,64 P. 1033 |
| Parties | THE STATE OF KANSAS v. WILLIAM MILLER |
| Court | Kansas Supreme Court |
Decided January, 1901.
Appeal from Republic district court; F. W. STURGES, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CONTINUANCE -- Absent Witness A party who seeks a continuance on account of an absent witness must show tat he has used the ordinary means provided by statute to obtain the testimony of such witness; and the failure to employ such means, when they are practicable and would be effectual will, as a general rule, be fatal to an application for a continuance.
2. INTOXICATING LIQUORS -- Nuisance -- Testimony. A complaint contained two counts charging unlawful sales of intoxicating liquors on a certain day, and also one charging that defendant maintained a place where such liquors were unlawfully sold. On the first trial there was, in effect, an acquittal on the second count, and afterward, upon appeal, there was another trial on the third count. Held, that the acquittal on the second count did not preclude the use of the evidence of unlawful sales on the day named in that count to sustain the third count, which charged defendant with maintaining a nuisance.
3. INTOXICATING LIQUORS -- Paraphernalia in Evidence. The fact that bottles, glasses, liquors and other articles may have been taken by an officer from the possession of the defendant in an unauthorized search of his premises does not constitute a valid objection to the admissibility of such articles in evidence against him, if they are otherwise pertinent and competent.
B. T. Bullen, and John C. Hogin, for The State.
V. D. Bullen, and T. S. Kirkpatrick, for appellant.
William Miller was charged with unlawful sales of liquor and with maintaining a place where liquor was unlawfully sold. The complaint contained three counts, the first two of which charged unlawful sales of liquor at particular times, and the third the maintenance of a nuisance. In justice's court he was convicted only upon the first and third counts, and acquitted on the second, which charged an unlawful sale of liquor. An appeal was taken to the district court, and there he was again convicted upon the first and third counts. He complains of the ruling of the court refusing a continuance.
The ground upon which the motion for a continuance was made was the absence of a witness. The testimony which it is alleged that the witness would have given appears to be competent and material, but it is not shown that due diligence was used to obtain his testimony. About two weeks before the trial was had, a notice was given that the deposition of the absent witness would be taken at a neighboring county-seat, and about a week afterward an effort was made to take the deposition, but at that time the witness had removed to another town, and his testimony could not be obtained under that notice. It does not appear that a subpoena was issued from the trial court, as might have been done under the statute. If a subpoena had been issued at the time the notice to take depositions was given, it could have been served on the witness and his attendance secured. In criminal cases witnesses may be subpoenaed in any county of the state, and district courts have full power to compel their attendance. (Crim. Code, §§ 165-167; Gen. Stat. 1901, §§ 5607-5609.)
A party who seeks a continuance on account of an absent witness must make it appear that he has used the ordinary legal means provided by statute to obtain the evidence; and where a party fails to employ such means, when they are practicable and would be effectual, the failure will, as a general rule, be fatal to an application for a continuance. No sufficient reason was given for the failure to have a subpoena issued, and therefore no sufficient diligence has been exercised by the appellant. The matter of continuance is largely within the discretion of the trial court, and its ruling refusing a continuance cannot be reversed unless it appears that there has been an abuse of discretion. (The State v. Barker, 43 Kan. 262, 23 P. 575.)
Another objection is that proof was admitted of a sale of liquor by the appellant on the 12th day of June, 1900. The second count of the complaint charged an unlawful sale upon that day, but on that count there was an acquittal in the lower court. The testimony, however, was not offered to sustain the charge on which there had been an acquittal, but was admitted as proof tending to...
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