State v. Shanks
| Citation | 72 Kan. 95,82 P. 527 |
| Decision Date | 07 October 1905 |
| Docket Number | 14,458 |
| Parties | THE STATE OF KANSAS v. H. LACKEY AND ANDY SHANKS |
| Court | United States State Supreme Court of Kansas |
Decided. July, 1905.
Appeal from Marion district court; OSCAR L. MOORE, judge.
STATEMENT.
THE defendants were tried jointly, and each was convicted on two counts for selling intoxicating liquors in violation of the prohibitory liquor law, at Peabody, on the 10th of September 1904.
The information contained seven counts, the first six charging unlawful sales and the seventh the maintenance of a nuisance. The seventh count was disposed of by the court on a motion to quash, and the jury returned a verdict of not guilty as to the first four counts, and guilty as to the fifth and sixth the prosecution having elected to rely for conviction on the last two counts on two separate sales on September 10, 1904. A motion for a new trial was denied. The defendants were sentenced, and seek a reversal of the judgments in this court.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CRIMINAL LAW--Erroneous Instruction Cured by Other Instructions. An instruction which states a proposition of law in general terms, and which is generally correct but is erroneous and misleading in the case on trial, may be corrected by other instructions so specific in their terms, and so unmistakably applicable to the facts shown by the evidence, that no jury could reasonably be misled by the general instruction. In such case the error is cured.
2. CRIMINAL LAW--Refusal of a New Trial--Conflicting Evidence--Review. When, on a motion for a new trial, the evidence is conflicting, and the ruling of the court upon the motion evidently amounts to a finding upon the disputed fact or facts, such finding should not be disturbed unless the ruling also involves an error of law or an evident abuse of the discretion with which the trial court is vested in determining such motions.
3. CRIMINAL LAW--New Trial--Newly Discovered Evidence. A new trial should not be allowed on the ground of newly discovered evidence when such evidence appears to be competent only for the purpose of impeaching the witnesses of the opposite party or when it is merely cumulative.
C. C. Coleman, attorney-general, Jay F. Close, assistant attorney-general, and S. Burkholder, county attorney, for The State.
W. H. Carpenter, for appellants.
OPINION
The first and second assignments of error are based upon the admission of the evidence of one Heath, over the objection of defendants, that he obtained certain bottles of liquid from the undersheriff, who seized some filled bottles at the time of the arrest; that he took them to Professor Lovewell to be analyzed and remained until the work was done, and had had the bottles in his possession ever since, producing two bottles which he said were the same. Professor Lovewell was called as a witness in regard to the analysis, and on objection his evidence was excluded. Thereupon the defendants moved to strike out the evidence of Heath in regard thereto, which motion the court denied.
It is urged that the defendants were prejudiced by the display of the bottles and the statement that an analysis had been made. The court might well have allowed the motion to strike out. However, in ruling upon the proffered testimony of Lovewell the court said, in the presence of the jury, that he did not think the evidence "competent for the sale alleged to have been made on a day previous to the time it [the liquid in the bottles] was taken." This in effect withdrew the evidence from the consideration of the jury, so far as the alleged sales were concerned, and cured the error, if there was error.
Again, it is urged that the court erred in giving the following instruction:
This is the usual and correct instruction given relating to the certainty of date and the limitation of the action where, as is usual, only one crime is charged in the information, but was erroneous and misleading in the case at bar. In this case there were six illegal sales charged. Under the order of the court the prosecution had elected to rely for conviction on a particular date for each, and, under the fifth and sixth counts of the information, upon sales made upon the 10th day of September, 1904; and one of the defendants had produced evidence that he was not in Peabody on that day, but was miles away in...
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