State v. Pfefferle

• Decision Date: 09 December 1886
• Citation: 12 P. 406,36 Kan. 90
• Parties: THE STATE OF KANSAS v. O. PFEFFERLE
• Court: Kansas Supreme Court

12 P. 406

36 Kan. 90

THE STATE OF KANSAS v. O. PFEFFERLE

Supreme Court of Kansas

December 9, 1886

Appeal from Lyon District Court.

PROSECUTION for a violation of the prohibitory liquor law. The defendant Pfefferle, and another, jointly charged in an information containing five counts, were jointly tried at the June Term 1886, and were found guilty on all the counts. Pfefferle was sentenced on each count to pay a fine of $ 100, to be imprisoned for thirty days in the county jail, and to pay the costs of the prosecution, taxed at $ 213.25. He appeals. The material facts are stated in the opinion.

Judgment affirmed.

Wood & Mackey, for appellant.

J. W Feighan, county attorney, and J. Jay Buck, for The State.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.

The information in this case contained five counts, in each of which it was charged that O. Pfefferle and August Gutekunst sold intoxicating liquors at stated times during the year 1886, without having a permit to do so. They were jointly tried, and were both found guilty on each count, but Pfefferle only has appealed. Testimony was received, over the objection of the defendants, that a portion of a barrel of whisky was found in the cellar of the house in. which they were doing business. It is claimed that the testimony was irrelevant, and did not tend to support the issue in the case, which was concerning sales of a drink called "phoenix," and not of whisky. We entertain no doubt that the testimony was admissible. The defendants were openly engaged in the sales of beverages, one of which was termed "phoenix." There was no analysis of this beverage, and whether whisky was one of the ingredients is not clearly shown. Witnesses did testify that "phoenix" was stimulating; some that it tasted, smelled and looked like beer; others, that they became drunk by the use of it; and the defendant admitted that it contained some alcohol. The charge was the sale of intoxicating liquors, and if the beverage sold was intoxicating, the mere fact that it was called "phoenix" will not change the rules of evidence, nor relieve the defendant from the consequences of its unlawful sale. The state elected to stand upon the sale of intoxicating liquors, and not upon the sale of "phoenix," as defendant argued. The evidence is amply sufficient to show that the beverage sold was an intoxicating one, and the fact that the defendant had in his place of business a barrel of whisky on tap tended in some degree to sustain the charge, and in connection with the other evidence was sufficient to sustain a verdict.

The defendant Gutekunst voluntarily became a witness in behalf of Pfefferle and himself, and upon cross-examination he was asked if he was not an old saloon keeper, and if he had not been tried and convicted in that court several times for the sale of liquor. Other questions of like import were asked, and the witness, over the objection of the defendant, admitted that he had been engaged in the sale of liquor, and had recently been tried and convicted for its unlawful sale. The admission of this evidence is the principal error complained of. By taking the witness stand, Gutekunst changed his status, for the time being, from defendant to witness, and was entitled to the same privileges and subject to the same treatment, and to be contradicted, discredited and impeached, the same as any other witness. But if a different rule applies to the defendant who becomes a witness, as some authorities seem to hold, it would not avail the appellant, as the defendant Gutekunst has not appealed and is not complaining, and therefore stands in the same relation to the appellant as any other witness. Although there is some diversity of judicial opinion concerning how far a witness may be cross-examined upon matters not relevant to the issue, with a view of discrediting him, yet we think the limits of cross-examination for such purpose rest largely in the discretion of the court; and there is abundant authority for allowing the questions asked in this case. Mr. Wharton, in discussing this question, says that --

"In this country there has been some hesitation in permitting a question, the answer to which not merely imputes disgrace, but touches on matters of record; but the tendency now is, if the question be given for the purpose of honestly discrediting a witness, to require an answer." (Wharton's Crim. Ev., § 474.)

Stephens, in art. 129 of his Digest of the Law of Evidence, in speaking of what are lawful questions on cross-examination, says:

"When a witness is cross-examined, he may be asked any questions which tend -- first, to test his accuracy, veracity, or credibility; or second, to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except in the case provided in article 120, viz., when the answer might expose him to a criminal charge or penalty."

In Wroe v. The State, 20 Ohio St. 460, the witness for the defendant was asked on cross-examination, "Were you not discharged or compelled to resign from the police force of the city of Dayton?" and also, "Are you not now under indictment for murder in the second degree in this court?" And another witness for the defendant was asked if he had not been indicted for assault and battery in that court, and pleaded guilty. The supreme court held that the questions were allowable under the latitude of cross-examination; and stated in its opinion that --

"It is difficult to lay down any precise rule fixing the limits to which a witness may be cross-examined on matters not relevant to the issue. This must in a great measure rest in the sound discretion of the court trying the cause. Such questions may well be allowed when there is reason to believe it will tend to the ends of justice; but they ought to be excluded when the disparaging course of the examination seems unjust to the witness, and uncalled for by the circumstances of the case."

In a later case in that state, where the defendant was on trial for murder in the first degree, and having offered himself as a witness, was asked on cross-examination if he had not previously been indicted for assault with intent to kill, and pleaded guilty to the same, and if he had not frequently been arrested in that county on charges of assault and battery, objections to these questions were overruled, and the supreme court held that it was within the discretion of the court to allow the questions for the purpose of judging of the character and credit of the witness from his own admissions, and that it did not appear that the discretion had been abused. (Hanoff v. The State, 37 Ohio St. 178.)

In Brandon v. The People, 42 N.Y. 265, the defendant became a witness in his own behalf, and on cross-examination he was asked: "Have you ever been arrested before for theft?" The counsel for the defendant objected to the question on the ground that the prosecuting attorney had no right to attack the character of the prisoner, she not...