State v. Skinner
| Decision Date | 07 November 1885 |
| Citation | 8 P. 420,34 Kan. 256 |
| Parties | THE STATE OF KANSAS v. CHARLES SKINNER. THE STATE OF KANSAS v. JAMES GORMALY THE STATE OF KANSAS v. J. N. FREW THE STATE OF KANSAS v. JAMES CARNINE. THE STATE OF KANSAS v. GUS. TEFT |
| Court | Kansas Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeals from Osage District Court.
ON April 21, 1884, an indictment was filed in the district court of Osage county against Charles Skinner, charging him in seven different counts with unlawfully selling intoxicating liquors in violation of chapter 128, Laws of 1881, commonly known as the prohibitory liquor law. Afterward, Skinner was arrested, and at the proper time filed a plea in abatement, which charged that the trustees of Osage county for the year 1884 did not select for jury service the names of persons on the assessment rolls of 1883, but willfully neglected, failed and refused so to do; that instead, they substantially and palpably disregarded the law, and made their selection of names from a class of persons incompetent to serve; that the foreman and eight members of the grand jury who found the indictment against him, were of a class incompetent to be drawn or to serve. To this plea The State filed in writing its answer. Upon the trial The State objected to the introduction of any testimony under the plea in abatement, because it did not state facts sufficient to constitute a defense, or sufficient to abate the cause of action. The court sustained the objection, and refused to hear or consider any evidence of the defendant under said plea. Thereupon, before the trial, the defendant filed in writing his motion to require The State to elect as to what specific offenses it would rely upon, which motion was overruled. The defendant then (May 23, 1885) waived arraignment, and pleaded not guilty. The jury returned a verdict of "not guilty" upon the 1st, 6th and 7th counts of the indictment, and found the defendant guilty upon the 2d, 3d, 4th and 5th counts. On May 23, 1885, the defendant filed his motion for a new trial, and on June 4, 1885, filed his motion in arrest of judgment, alleging therein that the grand jury that found the indictment had no legal authority to inquire into the offenses with which the defendant was charged, and that the facts stated in the indictment do not constitute any offense. These motions were overruled, and on said June 4, 1885, the court sentenced the defendant to pay a fine of $ 100 on the 2d count, $ 200 on the 3d count, $ 200 on the 4th count, and on the 5th count to be committed to the jail of Osage county for a period of thirty days--the fines in all aggregating the sum of $ 500. It was further adjudged that the defendant pay the costs of the prosecution, taxed at $ , and that he be committed to the jail of the county until the fines and costs were paid. The defendant excepted to the rulings, orders and judgment of the court, and brings his case here.
On October 14, 1884, an indictment was filed in the district court of Osage county against James Gormaly, charging him in eleven counts with unlawfully selling intoxicating liquors in violation of the prohibitory liquor law of 1881. The same plea in abatement to the indictment made in the Skinner case was made in this case, with the same result. Before the trial, the defendant moved the court to require the state to further inform him for what specific offenses he was to be tried, which was denied. Trial was begun May 20,1885, before the court with a jury. The defendant demanded four peremptory challenges for each offense or count stated in the indictment, but was limited to and made use of four only, the others being denied. The jury returned a verdict of not guilty as charged in the 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th counts of the indictment, but found him guilty as charged in the 1st, 2d and 3d counts. A motion for a new trial was filed by the defendant on May 21, 1885, and a motion in arrest of judgment was filed by him on June 4th, 1885. These motions were overruled, and the defendant was sentenced to pay a fine in the sum of $ 100 on the first count of the indictment, $ 200 on the second count, and upon the third count he was ordered to be committed to the jail of Osage county for a period of thirty days--the fines aggregating $ 300. The defendant was also adjudged to be committed to the jail of the county until the fines and costs were paid. The defendant excepted to the rulings, orders and judgment of the court, and brings his case here.
On October 21, 1884, an indictment was filed in the district court of Osage county against J. N. Frew, charging him in eleven counts with unlawfully selling intoxicating liquors in violation of the prohibitory liquor law of 1881. The same plea in abatement to the other indictments was made in this case. He also filed a motion to require the state to elect, which was refused. Trial had May 28, 1885, before the court with a jury. The jury returned a verdict of not guilty as to the 6th, 7th, 8th, 9th, 10th and 11th counts of the indictment, but found him guilty as charged in the 1st, 2d, 3d, 4th and 5th counts. Motions for a new trial and in arrest of judgment were filed and overruled; and on June 5, 1885, the defendant was sentenced to pay a fine of $ 100 on the 1st count of the indictment, $ 100 on the 2d count, $ 100 on the 3d count, $ 200 on the 4th count, and to be committed to the jail of Osage county for a period of thirty days upon the 5th count--the fines aggregating in all $ 500. The defendant was also adjudged to be committed to the county jail of the county until the fines and costs were paid. The defendant excepted to the rulings, orders and judgment of the court, and brings the case here.
On October 23, 1884, an indictment was filed in the district court of Osage county against James Carnine, charging him in four counts with unlawfully selling intoxicating liquors in violation of the prohibitory liquor law of 1881. He also filed a plea in abatement, which was disposed of as the others were. He also demanded four peremptory challenges upon each count or offense stated in the indictment, but was limited to and made use of four only. Trial was begun June 4, 1885, before the court with a jury. The jury returned a verdict of not guilty upon the 1st count of the indictment, but guilty as charged in the 2d, 3d and 4th counts of the indictment. Motions for a new trial and in arrest of judgment were filed, which were overruled; and on June 5, 1885, the court sentenced the defendant to pay a fine of $ 100 on the 2d count of the indictment, $ 200 on the 3d count, and that he be committed to the jail of Osage county for a period of thirty days on the 4th count--the fines aggregating $ 300. It was further adjudged that the defendant stand committed to the jail of the county until the fines and costs were fully paid. The defendant excepted to the rulings, orders and judgment of the court, and brings the case here.
On October 24, 1884, an indictment was filed in the district court of Osage county against Gus. Teft, charging him in thirteen counts with unlawfully selling intoxicating liquors in violation of the prohibitory liquor law of 1881. The same plea in abatement to the indictment made in the foregoing cases was made in this case, with the same result. Trial was begun February 24, 1885, before the court with a jury. The defendant entered a verbal challenge to the array and entire panel of jurors, which was overruled. The jury returned a verdict of guilty as charged in each and every count of the indictment, excepting the 2d count thereof. Subsequently, motions for a new trial and in arrest of judgment were filed. The motion for a new trial was overruled as to the 1st, 3d, 4th, 5th, 6th, 7th, 8th and 13th counts of the indictment, but sustained as to the 2d, 9th, 10th, 11th and 12th counts thereof. The motion in arrest of judgment was wholly overruled. The indictment and the 2d, 9th, 10th, 11th and 12th counts thereof were continued, and the defendant required to give bail in the sum of $ 500. The court sentenced the defendant to pay a fine of $ 100 on the 1st count, $ 125 on the 3d count, $ 150 on the 4th count, $ 175 on the 5th count, $ 200 on the 6th count, $ 225 on the 7th count, and that the defendant be committed to the jail of Osage county for a term of thirty days upon the 8th count, and that he be committed to jail of said county forty-five days on the 13th count--the fines aggregating $ 975, and the imprisonment 75 days. The defendant was further adjudged to be committed to the county jail of the county until the fines and costs were paid. The defendant excepted to the rulings, orders and judgment of the court, and brings the case here.
Judgement reversed and cause remanded.
Ellis Lewis, and Waters & Chase, for appellants.
S. B. Bradford, attorney general, for The State; Edwin A. Austin, of counsel.
OPINION
In all these cases the defendants were convicted of unlawfully selling intoxicating liquors without a permit, in violation of the prohibitory liquor law of 1881. They are so nearly similar, and have so many points in common, that they may be considered together.
I. We think the trial court very properly refused to receive any evidence in support of the pleas in abatement, charging that the members of the grand jury returning the indictments in these cases were not drawn and summoned in accordance with the provisions of the statute. A plea in abatement is a dilatory plea, and must be pleaded with strict exactness--it must be certain to every intent; consequently, we must construe the pleas as alleging that the grand jurors were incompetent simply because the trustees of Osage county for...
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