State v. Oster
| Decision Date | 05 December 1925 |
| Docket Number | 26,584 |
| Parties | THE STATE OF KANSAS, Appellee, v. (CLYDE BROWN) and STELLA VAN OSTER, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1925.
Appeal from Finney district court; CHARLES E. VANCE, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. INTOXICATING LIQUORS--Forfeiture of Transporting Automobile--Knowledge of Owner. An automobile which the owner places in the possession of another for general use and such other uses it in the unlawful transportation of intoxicating liquors without the knowledge of the owner, is subject to forfeiture and condemnation under the statute relating to liquor nuisances, following State v. Peterson, 107 Kan. 641 193 P. 342, and State v. Stephens, 109 Kan. 254, 198 P. 1087.
2. SAME -- Evidence of Intoxicating Character -- Competency. Officers of experience who found the liquor transported and determined by the sense of smell and from its appearance that it was strong intoxicating liquor are qualified to testify that it was intoxicating, and no error was committed in the admission of such testimony.
William H. Thompson and Wilbert F. Thompson, both of Tulsa, Okla., for the appellant.
C. B. Griffith, attorney-general, C. A. Burnett, assistant attorney-general, and Ray H. Calihan, county attorney, for the appellee.
This appeal involves the validity of a judgment condemning and forfeiting an automobile found and declared to be a common nuisance. The grounds of forfeiture were that the automobile driven by one Clyde Brown had been used in transporting intoxicating liquors from one place to another within the state in violation of law. On one occasion when Brown was driving the car he was arrested on a charge that he was unlawfully in the possession of intoxicating liquors, and on another that he was unlawfully transporting intoxicating liquors in the car in question from one place to another within the state. At the time of the arrest the automobile was seized and the possession of the same was thereafter held by the sheriff. Stella Van Oster intervened and asked to be made a party to the proceeding against the automobile, and she alleged that she was the owner of the same, and that if Brown had been transporting liquor in the car it was done without her knowledge or sanction. She further alleged that Brown did not have liquor in the car when it was seized by the sheriff, that none was found therein by the sheriff, and that the seizure and forfeiture of the car by him and the subsequent condemnation was without authority of law and a violation of the fourteenth amendment of the federal constitution.
The first contention of Mrs. Van Oster is that there was no proof offered to show that there was liquor in the car nor that the bottle of liquor which Brown is said to have thrown from the car just before his arrest was in fact intoxicating. There is testimony that the officers, acting upon the theory that he was transporting intoxicating liquors in the car, pursued and caught up with him, whereupon they forced the car he was driving into the curb and stopped him. An officer testified that after Brown was ordered to stop he was seen to throw a bottle from the car about fifteen steps from where he finally did stop, and that upon a search of the place the bottle was found, and that it contained strong intoxicating liquor. One of the officers testified that the grounds of their suspicion were that they had seen Brown stop at a place a short distance out of Garden City, and on visiting the place found a jug of booze there. Afterwards they pursued him and found no liquor in the car, but did find the bottle which he was seen to throw from the car about the time they caught up with him. That bottle contained about a pint of liquid, and upon examination the officers stated that it was intoxicating. While it was not tested by a chemist nor did the officers taste it, it was tested by their sense...
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