State v. Shew

• Decision Date: 12 May 1899
• Citation: 8 Kan.App. 679,57 P. 137
• Parties: STATE v. SHEW.
• Court: Kansas Court of Appeals

57 P. 137

8 Kan.App. 679

STATE v. SHEW.

Court of Appeals of Kansas, Southern Department, Central Division

May 12, 1899

Syllabus

1. Where material testimony of a witness for the state was declared by the witness to rest upon a memorandum made by him in a book not produced in court, held error to narrowly limit the cross-examination in respect to the alleged memorandum book.

2. Where the testimony for the state in a misdemeanor case was entirely that of two paid detectives, held error to sustain an objection made by the state to a question asked one of the detectives, on cross-examination, concerning the amount paid him by the county attorney for his services.

3. It is the duty of the trial court to instruct the jury to scrutinize closely the testimony of any one who acted as a detective for the state in the transaction, whereby the defendant is alleged to have committed a misdemeanor, and who may have had a motive for testifying that an illegal sale of intoxicating liquor was made even though no such sale was actually made.

4. Instruction which assumed the existence of a state of facts not shown by the evidence held erroneous.

Appeal from district court, Harvey county; M. P. Simpson, Judge.

G. M Shew was convicted of selling intoxicating liquors, and appeals. Reversed.

Bowman & Bucher, for appellant.

L. C. Boyle, Atty. Gen., and W. S. Allen, Co. Atty., for the State.

OPINION

MILTON, J.

Appellant was convicted before a jury, in the district court of Harvey county, of a violation of the prohibitory law, and was sentenced by the court to pay a fine of $100, and to be imprisoned 30 days in the county jail. The information charged that on the 26th day of August, 1897, the defendant "did then and there unlawfully, without taking out a permit from the probate judge of said county, bargain, sell, and give away intoxicating liquor." The defendant’s motion to quash the information was overruled, as was also his motion to require the state to file a bill of particulars. The testimony on behalf of the state was that of two detectives, Pinneo and Dobson, who had been employed by the county attorney of Harvey county to procure and furnish evidence against persons engaged in the unlawful sale of intoxicating liquors in that county. They came to Newton from St. Joseph, Mo., early in the month of August, 1897, and Pinneo at once began to cultivate the acquaintance of appellant, who appears to have been a man of good reputation, and who had resided in Newton for 20 years, during the last 13 of which he had acted as local agent of the Pacific Express Company. He received a stated salary, and no commissions on business done, for his services as agent. G. W. Hurst, a jeweler, occupied a portion of appellant’s office, and frequently delivered express matter for appellant, in the latter’s absence. On the 17th of August, Pinneo went into Shew’s office, and made bitter complaint of the quality of whisky he was obliged to put up with in Newton, and asked Shew if he knew where any good whisky could be bought. Shew told him that some parties had recommended a certain brand of whisky sold by Dreyfus & Co., of Kansas City, Mo. After inquiring the price, Pinneo requested Shew to send there for a gallon of the whisky, and Shew thereupon wrote an order on an order blank, addressed to Dreyfus & Co., for one gallon of the liquor, and also wrote an express money order for $2.25, and inclosed both orders in an envelope, addressed to the office of the Pacific Express Company, in Kansas City, Mo. He did not deliver the receipt for the money order to Pinneo, nor did the latter pay for the same. Shew claimed that Pinneo left the room before he had finished writing the money order, and that, feeling confident payment would be made therefor, the transaction was completed with out requiring such payment. The liquor was shipped promptly in a gallon jug, and the jug in a box. Pinneo gave his name to the agent as being M. Pennington, and the receipt for the money order and the stub, as well as the address marked on the box containing the liquor, were in that name. Shortly after the liquor arrived in Newton, Pinneo and Dobson went to the express office, and Pinneo there introduced Dobson to Shew, stating that he himself might not call for the liquor, and that, in that event, it should be delivered to Dobson. The latter subsequently called for the package, and the same was d elivered to him by Hurst, in the absence of Shew. Dobson claimed that he paid $3.40 to Hurst for the package, such payment including the price of the liquor and the express charge; while Hurst testified the express charge was 65 cents, and that Dobson paid, in addition thereto, $2.25, the amount of the money order which had been issued and forwarded by Shew. The whisky, with the exception of a small portion which the detectives had removed from the jug, was delivered to the county attorney, and was afterwards exhibited on the trial. After Dobson had stated that he paid $3.40 when the package was delivered to him, he qualified his statement somewhat, and mentioned that he had made a memorandum of the amount in a book which he then...