State v. Patterson

• Decision Date: 06 May 1916
• Docket Number: 20,540
• Parties: THE STATE OF KANSAS, Appellee, v. PORTER PATTERSON, Appellant
• Court: Kansas Supreme Court

157 P. 437

98 Kan. 197

THE STATE OF KANSAS, Appellee, v. PORTER PATTERSON, Appellant

No. 20,540

Supreme Court of Kansas

May 6, 1916

Decided, January, 1916.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIQUOR LAWS--"Persistent Violation"--Several Prior Convictions--No Election Required. In a prosecution for persistent violation of the prohibitory liquor law, it is not error to deny a motion of the defendant to require the state to elect on which of several prior convictions alleged in and proved under each count it will rely for conviction on that count.

2. SAME--Evidence--Competency. Certain alleged errors in the admission of evidence have been examined. The evidence complained of was competent.

3. SAME--Cross-examination of Defendant. There was no error in the cross-examination of the defendant.

4. SAME--Trial--Misconduct of County Attorney. It is not such misconduct as will cause a judgment of conviction to be reversed for a county attorney, in his closing argument to a jury, to say that if the jury should disregard the evidence of certain witnesses and return a verdict of not guilty, it would be of no use to try certain other criminal cases and that he might as well dismiss them, for the reason that the state depends for a conviction in those cases upon the same class of testimony as that introduced on the trial in which the argument is made.

5. SAME--Trial--Instructions. Certain instructions have been examined. They fully cover the law concerning the matters complained of, and there was no error in giving or refusing instructions.

J. J. Schenck, of Topeka, for the appellant.

S. M. Brewster, attorney-general, S. N. Hawkes, assistant attorney-general, and W. E. Atchison, county attorney, for the appellee.

OPINION

MARSHALL, J.

The defendant appeals from a judgment of conviction for persistent violation of the prohibitory liquor law.

1. He was charged in seven and convicted on three counts. Each count of the information charged three previous convictions for violations of the law--one on a charge in police court and two in prosecutions by the state. All reference to the conviction in police court was stricken from the information on the trial. At the close of the evidence for the prosecution, the defendant moved the court to require the state to elect upon which of the former convictions proved it relied for conviction on each count. This motion was denied. Of this the defendant complains. In prosecutions of this kind the state may charge and prove more than one previous conviction of violation of the law. A motion to require the state to elect upon which of the former convictions alleged or proved it will rely for conviction should be denied.

2. The defendant contends that the court erred in admitting evidence offered by the state. This contention is based on evidence tending to show that intoxicating liquors were ordered by persons other than the defendant and directed to be hauled to the barn of the defendant's father by the persons ordering the liquors. It is argued that this is not sufficient to sustain a conviction. The evidence also tended to show that some of this liquor, ordered by other persons and taken to the barn of the defendant's father, was taken from there to the defendant's house; that the defendant directed that it be taken to his house; that he paid for hauling liquor to, and sold liquor at his house. This evidence was competent, and there was evidence sufficient to sustain the conviction for keeping and maintaining a nuisance. No reversible error in the admission of evidence has been shown.

3. Complaint is made of the cross-examination of the defendant who...