State v. Stockman

• Decision Date: 04 November 1899
• Docket Number: 365
• Citation: 58 P. 1032,9 Kan.App. 422
• Parties: THE STATE OF KANSAS v. CHAS. STOCKMAN
• Court: Kansas Court of Appeals

58 P. 1032

9 Kan.App. 422

THE STATE OF KANSAS v. CHAS. STOCKMAN

No. 365

Court of Appeals of Kansas

November 4, 1899

Decided November, 1899.

Appeal from Smith district court; R. M. PICKLER, judge.

Judgment affirmed.

SYLLABUS

1. PRACTICE, DISTRICT COURT -- Challenge of Juror -- Waiver of Error. A juror on his voir dire testified that he was unable to read and write; the defendant challenged him for cause, but the court overruled the challenge, and the jury afterward were impaneled and sworn. The record fails to show that the defendant exhausted his peremptory challenges. Held, not error. A party should be compelled to use all reasonable means to discharge all objectionable jurors before the commencement of the trial, and a failure to do so must be construed as a waiver of all known objections.

2. INTOXICATING LIQUORS -- Evidence -- Jugs, Bottles etc. The jugs, bottles and vessels supposed to contain intoxicating liquors, procured by an officer making the arrest in a liquor case at defendant's place of business, may be offered in evidence upon the trial, together with the labels, printed and written matter thereon.

J. T. Reed, for appellant.

D. M. Relihan, for The State.

OPINION

MCELROY, J.:

This was a criminal prosecution under the prohibitory liquor law. The defendant Charles Stockman was charged in the district court of Smith county, in an information containing five counts, with the violation of the prohibitory liquor law; the first four counts charged him with the unlawful selling of intoxicating liquors, and the fifth with keeping and maintaining a common nuisance. A trial was had before the court and a jury, and the defendant was found guilty as charged in the fourth and fifth counts of the information. A motion for a new trial was filed and overruled. The defendant was sentenced to pay a fine of $ 100, that he be confined in the county jail of Smith county for a period of thirty days upon each count of the information upon which he was convicted, and that he pay the costs and stand committed to the county jail until the expiration of the terms of imprisonment and until the fines and costs should be paid. The defendant appeals.

First. It is contended that the court erred in not sustaining the defendant's challenge to the juror Vansycle. The voir dire examination of this juror disclosed the fact that he was unable to read and write, for which cause the defendant challenged the juror as incompetent to sit in the trial of the case. The challenge was overruled, and Vansycle was one of the jury finally impaneled and sworn to try the cause. The record fails to show that the defendant exhausted any of his peremptory challenges. It has been repeatedly held by the supreme court that a party waives his right to insist upon error in the refusal of the court to sustain a challenge to a juror for cause where such party fails to exhaust his peremptory challenges. (The State v. Vogan, 56 Kan. 61, 42 P. 352; Florence, E. D. & W. V. Rly. Co. v. Ward, 29 Kan. 354; The State v. Snodgrass, 52 Kan. 174, 34 P. 750; The State v. Furbeck, 29 Kan. 532.)

In the Encyclopedia of Pleading and Practice, volume 12, page 507, it is said:

"But by the great weight of authority, no advantage can be taken of the improper overruling of a challenge for...