State v. Pore
| Decision Date | 07 March 1936 |
| Docket Number | 32544. |
| Citation | 143 Kan. 344,55 P.2d 348 |
| Parties | STATE v. PORE. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Evidence sustained conviction of being persistent violator of prohibitory law.
Credibility of evidence in liquor prosecution held for jury.
Permitting jury in liquor prosecution to smell whisky in jug which police officer took from accused's wife held improper but not prejudicial, where intoxicating qualities of whisky were not in dispute.
Error in admission of evidence of debatable competency cannot be considered on appeal when matter complained of has not been urged in court below in motion for new trial and where no error is assigned on overruling of motion for new trial (Rev.St.1923, 62--1414, 62--1603).
In an appeal from a judgment and sentence following defendant's conviction as a persistent violator of the prohibitory law the record examined and held:
1. The evidence was sufficient to sustain the verdict.
2. Evidence tending to exculpate the defendant, to which the jury gave no credence, did not Impair the verdict, judgment and sentence.
3. Permitting the jury to smell the intoxicating liquors seized in a police raid is a practice this court does not approve but in this instance it was nonprejudicial.
4. Error in the admission of evidence of debatable competency cannot be considered on appeal when the matter complained of was not urged in the court below in a motion for a new trial and where no error is assigned on the overruling of the motion for a new trial.
Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.
Edward N. Pore was convicted as a persistent violator of the prohibitory law, and he appeals.
Evidence sustained conviction of being persistent violator of prohibitory law.
Clarence R. Sowers, of Wichita, for appellant.
Clarence V. Beck, Atty. Gen., Earl B. Swarner, Asst. Atty. Gen., and Sidney L. Foulston, Co. Atty., and Roger P. Almond, Deputy Co. Atty., both of Wichita, for the State.
This is an appeal by defendant from a judgment and sentence as a persistent violator of the prohibitory law, following a verdict of guilty to that effect.
He contends that the evidence was insufficient to prove his illegal possession of intoxicating liquor or the maintenance of a liquor nuisance. The evidence in brief was as follows: Police officers called at defendant's home in Wichita. One of them knocked at the front door; defendant's wife opened it, and, seeing a policeman, she slammed the door, locked it, and called her husband. The officer kicked the door open and went into the bathroom, where defendant's wife was pouring a jug of whisky into the stool, He took the jug from her, and she again called her husband, this defendant. He came, and, when he saw the officer in possession of the whisky jug, he said "Well, I guess I had better get ready."
Other evidence tending to show that the defendant's home had been turned into a liquor nuisance was some bottles of beer and empty beer bottles and an empty flask on the back porch and three jugs in the bathroom, two of which were empty. The liquor in one of the jugs tested 50 percent. alcohol. This evidence was quite sufficient to take the case to the jury on a charge of violating the prohibitory law. State v. Perry, 102 Kan. 896, 171 P. 1150; State v. Nossaman, 118 Kan. 157, 233 P. 1028; State v. Carl, 124 Kan. 277, 259 P. 680.
The fact that defendant had been previously convicted of violations of the prohibitory law was not in dispute, so that the only issue in this case was the sufficiency of the evidence to prove a breach of the Intoxicating Liquor Act.
Defendant cites State v. Metz, 107 Kan. 593, 193 P. 177, which dealt with the requisite facts to constitute possession of liquors, and State v. Ciccel, 101 Kan. 787, 168 P. 867, which considered the sufficiency of the evidence to sustain a verdict of guilty. We discern nothing in either of these cases which could justify a reversal of the judgment in the case at bar.
In defendant's behalf evidence was...
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State v. Marsh
...We cite but a few of the many decisions in which the rule has been applied: State v. Shehi, 125 Kan. 110, syl. 2, 263 P. 787; State v. Pore, 143 Kan. 344, syl. (4), 55 P.2d 348; State v. Owen, 161 Kan. 361, 168 P.2d 917; State v. Turner, 183 Kan. 496, syl. 1, 328 P.2d 733, appeal dismissed ......
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State v. Hayes, 37973
...114 Kan. 692, 220 P. 214; State v. Harrison, 128 Kan. 284, 276 P. 818; State v. Toelkes, 128 Kan. 293, 278 P. 20; State v. Pore, 143 Kan. 344, 55 P.2d 348; State v. Zeilinger, 147 Kan. 707, 78 P.2d 845; State v. Mosley, 163 Kan. 530, 183 P.2d Appellant presented and argued but one of the gr......
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State v. Hamilton, 41434
...of this court by assigning as error denial of the motion for new trial, may not be considered on appeal.' (Syl. 2.) In State v. Pore, 143 Kan. 344, 55 P.2d 348, it was 'Error in the admission of evidence of debatable competency cannot be considered on appeal when matter complained of has no......
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