State v. Pulec

• Court: Kansas Supreme Court
• Writing for the Court: SMITH; HARVEY
• Citation: State v. Pulec, 263 P.2d 230, 175 Kan. 290 (Kan. 1953)
• Decision Date: 07 November 1953
• Docket Number: No. 39104,39104
• Parties: STATE v. PULEC.

Page 230

263 P.2d 230

175 Kan. 290

STATE v. PULEC.

No. 39104.

Supreme Court of Kansas.

Nov. 7, 1953.

Syllabus by the Court.

1. Criminal statutes must be strictly construed.

2. G.S.1949, 41-2708, G.S.1949, 41-2711, and G.S.1951 Supp., 41-2704, examined and construed--Held, possession prior to the enactment of G.S.1951 Supp. 41-2704, of alcoholic liquor on premises by a person licensed to engage in the retail sale of cereal malt beverages thereon did not constitute a misdemeanor but only a ground for revocation of the license to sell cereal malt beverages.

Hal C. Davis, Topeka, and E. J. Malone, Hays, argued the cause and were on the briefs, for appellant.

Norbert R. Dreiling, County Atty., Hays, argued the cause, and Harold R. Fatzer, Atty. Gen., was with him on the briefs, for appellee.

SMITH, Justice.

Defendant was convicted of a violation of G.S.1949, 41-2708, and appeals.

This case has been here before. See State v. Pulec, 173 Kan. 261, 246 P.2d 270, 272. Defendant was charged in two counts on different dates with unlawfully having alcoholic liquor on premises, which were licensed in her name for the sale of cereal malt beverages. The statute sets out at G.S.1949, 41-2708, twelve grounds for which the board of county commissioners or the governing body of a city upon five days' notice to the persons holding a cereal malt beverage license may revoke it. The twelfth of these grounds is '(l) For the sale or possession of or for permitting any person to use or consume upon or in said premises alcoholic liquor as defined by the laws of the state of Kansas relating thereto.'

The complaint charged that defendant had alcoholic liquor in her possession on premises which had been licensed in her name for the retail sale of cereal malt beverages.

In the justice court she was found guilty and appealed.

In the district court the complaint was quashed.

The state appealed. We said:

'The sole question presented is whether defendant's possession of alcoholic liquor on premises on which she had a license to sell cereal malt beverages constitutes a criminal offense or only a ground for revocation of her license to sell cereal malt beverages?'

The state in that case pointed out the provisions of G.S.1949, 41-2711, same being a section of the original liquor control act, as follows:

'Any person violating any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.'

The state argued that this section and G.S.1949, 41-2708, should be considered together and when so considered compelled a conclusion that having liquor in the possession of one to whom cereal malt beverage license had been issued for the premises was a misdemeanor. We pointed out that we had answered the question in favor of the state's contention in State v. Wilson, 169 Kan. 659, 220 P.2d 121, and the majority of the court held we concluded the decision in the Wilson case was correct and we adhered to it. The judgment of the trial court was reversed. Three of the justices dissented from this decision. The case has now been tried in the district court and the defendant convicted under count 1 of the complaint. After the jury had been empaneled, defendant moved for her discharge and that the complaint and warrant be quashed on the ground that the complaint did not allege a public offense. After the jury was empaneled she presented the same motion. Following our decision in State v. Pulec, supra, the trial court overruled these motions. We have again considered the arguments made in the former appeal. This has led us to a critical re-examination of G.S.1949, 41-2708. That section provides as follows:

'The board of county commissioners or the governing body of any city, upon five days' notice to the persons holding such license, shall revoke such license for any one of the following reasons: (a) if a licensee has fraudulently obtained the license by giving false information in the application therefor; (b) if the licensee has violated any of the provisions of this act or any rule or regulation made by the board or the city as the case may be; (c) if the licensee has become ineligible to obtain a license in this act; (d) drunkenness of the person holding such license or permitting any intoxicated person to remain in such place; (e) the sale of cereal malt beverages to those under the age of eighteen years; (f) the nonpayment of any license fees; (g) for...