State v. Stark

• Decision Date: 05 October 1901
• Docket Number: 12,602
• Parties: THE STATE OF KANSAS v. BALFE H. STARK
• Court: Kansas Supreme Court

66 P. 243

63 Kan. 529

THE STATE OF KANSAS v. BALFE H. STARK

No. 12,602

Supreme Court of Kansas

October 5, 1901

Decided July, 1901.

Appeal from Shawnee district court; Z. T. HAZEN, judge.

STATEMENT.

THE appellant, with Carrie Nation and six others, was charged by information with malicious trespass, under section 2053 of the General Statutes of 1899 (Gen. Stat. 1901, § 2100). The offense alleged was that defendants did, on or about the 17th day of February, 1901, wilfully, unlawfully and maliciously break, destroy and injure the door and windows of a building at No. 111 East Sixth street, in the city of Topeka, used as a cigar store and billiard hall by F. H Murphy. Having obtained a separate trial, the appellant moved the court for a change of venue on the ground of the prejudice of the presiding judge against him. This application was based on language used by the judge toward Carrie Nation and three others who were brought before him upon proceedings wherein they were held to give bond to keep the peace, the charges against them being substantially the same as those contained in the information against the appellant, to wit, the destruction of property. The latter however, was not a party to that prosecution. In addressing Mrs. Nation and the three others, the judge stated that the action of the parties was wholly unwarranted by any construction to be placed on the law, and further said:

"I want to say to you people who appear charged with having aided and abetted her that this is a court of law, and not one of sentiment. Having broken the law, you have no more rights in this court than the jointist. Your contempt of the law is as great as his. Mrs. Nation and her followers made an attack Sunday upon a perfectly legitimate business in which $ 100,000 is invested. They have repeatedly broken the law and destroyed property and gone unhindered and unpunished. The time has come in this community when people are demanding that something be done. I want to say to you that this unwarranted destruction of property must stop. Have people no rights that a crazy woman and her deluded followers are bound to respect? There is not a lawyer in this room who will not tell you that you have no right under the law to do these things. . . . You have no right to attempt to abate a nuisance except through the regular channels. Reputable men in this community have given sanction to a movement that has led to riot and may lead to bloodshed. I want to say to you people who have been placed under bond that if you go out on any more raids your bondsmen will be compelled to forfeit the amount to the last penny. I want to make this proposition clear to you. Property must and will be defended."

The information was filed February 17, and the case called for hearing February 20, and thereon passed until February 25. A motion was then made by appellant for a postponement on account of the sickness of Mr. Stone, one of his counsel, and for the reason that Mr. Martin, his other attorney, had been unable to prepare for trial. The application was made by Mr Troutman and Mr. Bain, who appeared on behalf of the appellant and showed that they had made no preparation for the trial. The application was overruled, a jury impaneled and a verdict of guilty returned, followed by a fine imposed on the defendant of twenty-five dollars, with the costs of the prosecution.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTOXICATING LIQUORS -- Common Nuisance -- Abatement. All places where intoxicating liquors are sold or kept for sale, or places where persons are permitted to resort for the purpose of drinking the same, are declared by statute to be common nuisances. This fact, however, does not justify their abatement by any person or persons without process of law. They can be abated only by a prosecution instituted in behalf of the public by the proper officer. The destruction or injury of property used in aid of the maintenance of such nuisances, except in the manner provided by the statute, is a trespass.

2. CRIMINAL PRACTICE -- Change of Venue. A change of venue in a criminal prosecution is a wrong to the public unless the necessities of justice to the accused require it. Prejudice on the part of a judge must clearly appear. A prima facie showing of prejudice is insufficient. The case of City of Emporia v. Volmer, 12 Kan. 622, followed.

3. MISDEMEANORS -- Accessaries. In the commission of a misdemeanor there are no accessories. All persons aiding or counseling are principals.

Galen Nichols, county attorney, for The State.

Troutman & Stone, D. H. Martin, and Thos. H. Bain, for appellant.

SMITH J. JOHNSTON, GREENE, ELLIS, JJ., concurring.

OPINION

SMITH, J.:

The court did not err in overruling the application for a change of venue. The remarks of the judge were made to Carrie Nation and others in a proceeding to which the appellant was not a party. No personal prejudice towards Stark was shown. From all that appears, the judge might have been kindly disposed toward the defendant. The attack on Sunday, referred to by the judge, related to the conduct of other parties with whom the appellant was not connected. Had the language coming from the bench been directed to Stark, he might have had reason to complain. His case was not, however, before the court at that time. It has been held that a change of venue is a wrong to the public, unless the interests of justice to the defendant require it, and that prejudice on the part of a judge toward a defendant must clearly appear. It is not sufficient that a prima facie case only be shown. ( City of Emporia v. Volmer, 12 Kan. 622, 627.) The record shows that the district judge tried the case with fairness, and the punishment imposed was exceedingly moderate, considering that the maximum for such offenses is imprisonment in the county jail not exceeding one year, and fine not exceeding $ 500, or both such fine and imprisonment.

The granting of a continuance was largely a matter within the discretion of the court. The offense charged was a misdemeanor. We do not think any of the rights of the defendant were prejudicially affected by the absence of attorneys who had prepared for the trial. He was represented by counsel of high standing and ability, and we find nothing in the record to indicate that any point favorable to him was overlooked.

There was some confusion in the answers made by the juror Hale Ritchie touching his opinion of the guilt or innocence of the defendant, but his whole examination, taken together, does not show him to have been disqualified.

Complaint is made that several of defendant's witnesses, upon cross-examination, were subjected to rigid inquiries as to the existence of a certain organization formed for the purpose of destroying property. Nothing more was extracted by the state from such witnesses than the defendant himself confessed concerning such organization. He admitted that he was a member of a company which assembled on the state-house steps and from there moved to the place where the property in question was injured, and that he took an ax along because he thought he might be called on to use it. There was no error in the instruction that if the defendant was present, advising, counseling or encouraging the breaking of the doors and windows, he was equally as guilty with those actually committing the offense, although he may not in person have injured said property. In misdemeanors, all concerned, if guilty at all, are principals. (The State v. Gurnee, 14 Kan. 111; Sharpe v. Williams, 41 id. 56, 20 P. 497.)

The appellant offered to prove that the prosecuting...