State v. Tudor

• Decision Date: 06 November 1926
• Docket Number: 26,682
• Citation: 250 P. 296,121 Kan. 762
• Parties: THE STATE OF KANSAS, Appellee, v. J. H. TUDOR, Appellant
• Court: Kansas Supreme Court

250 P. 296

121 Kan. 762

THE STATE OF KANSAS, Appellee, v. J. H. TUDOR, Appellant

No. 26,682

Supreme Court of Kansas

November 6, 1926

Decided July, 1926.

Appeal from Stafford district court; RAY H. BEALS, judge.

Judgment reversed and affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TRIAL--Misconduct of Counsel in Opening Statement--Admonition Curing Error. Where the county attorney in his opening statement told the jury in a liquor case that a former trial of defendant's had resulted in a hung jury, and the trial court promptly instructed the jury to disregard such improper statement, no prejudicial error was committed.

2. INTOXICATING LIQUORS--Information--Nuisance Sufficiently Charged. There was no substantial defect in the count in the information charging defendant with maintaining a nuisance nor any shortage of evidence to support the verdict and judgment based thereon.

3. CRIMINAL LAW--Reception of Evidence--Election Between Offenses. Rule followed that in the prosecution of a defendant on one or more counts of an information charging certain specific offenses, where evidence is introduced by the state tending to prove several separate and distinct offenses committed by the defendant, it is the duty of the trial court, on motion of defendant, to require the prosecuting attorney to elect upon which particular criminal transaction testified to he relies for conviction in each particular count of the information.

4. SAME--Reception of Evidence--Election Between Offenses--Nonprejudicial Failure to Elect. Where one of several counts of an information charging various unlawful sales of intoxicating liquor is specific and precise, and all the evidence pertaining thereto is definite and exclusively directed to that particular count, and the record discloses nothing to indicate that defendant was misled or handicapped in preparing his defense thereto, a verdict of guilty and a judgment on such count will not be set aside because the trial court overruled defendant's motion to require the county attorney to elect on what particular transaction testified to he relied to support the charge comprehended in that particular count.

Paul R Nagle, Robert Garvin and Evart Garvin, all of St. John, for the appellant.

C. B. Griffith, attorney-general, Roland Boynton, assistant attorney-general, William Davison, county attorney, and W. A. Huxman, of Hutchinson, for the appellee.

OPINION

DAWSON, J.:

The defendant was convicted of various infractions of the prohibitory law.

It appears that defendant conducted a mercantile and grocery establishment in St. John, and did a considerable business in the sale of vanilla extracts which contained a high percentage of alcohol and which some of his customers purchased for use as a beverage. As a consequence, he was prosecuted on twelve counts for unlawful sales of intoxicants, four counts for unlawful possession of intoxicating liquor, and one count for maintaining a liquor nuisance. The first four counts of the information pertained to a considerable but indefinite number of alleged sales of Forbes' vanilla extract, an intoxicating liquor, to one Frank Brown. The jury acquitted defendant on those counts, and they need no further consideration.

The fifth count charged defendant with a sale of intoxicating liquor (vanilla extract) to one Herman Logan on the day of January, 1925. The sixth count was precisely identical with the fifth. The seventh count was identical with the fifth and sixth, except that the alleged sale was made on the day of September, 1924. A conviction was had on these three counts.

The eighth, ninth, tenth and eleventh counts pertained to alleged sales to one Emmett Mason, but a verdict of not guilty was rendered thereon.

The twelfth count pertained to an alleged sale to one Fred Lewis. The defendant was convicted thereon.

The thirteenth, fourteenth, fifteenth and sixteenth counts charged defendant with having unlawful possession of intoxicating liquors in December, 1924, and in January, July and August, 1925. A new trial was granted on counts 13, 15 and 16, and judgment and sentence were imposed in accordance with the verdict returned on count 14.

A verdict of guilty was also rendered on a nuisance count, number 17.

Judgment on counts 5, 6, 7, 12, 14 and 17 was rendered accordingly, with jail sentences thereon to run consecutively.

Defendant appeals, urging various trial errors and objections to the judgment.

Noting these as they are argued, defendant's first complaint is that error was committed when the county attorney told the jury in his opening statement "that the case had been tried once before and that the jury had disagreed, and that the trial had resulted in a hung jury." This statement was gratuitous and improper, but the trial court gave the jury a timely admonition to disregard it, and this court is not in a position to say that the incident was prejudicial.

Defendant emphasizes the fact that vanilla extract is a standard culinary article, regularly handled by wholesale houses and grocery stores and that housewives were his chief customers. But Herman Logan, to whom defendant made a number of sales of the extract at different times, testified that in September or October, 1924, he bought some of the extract to drink. That testimony manifestly pertained to count 7 upon which defendant was convicted. Defendant urges quite correctly that in all the other sales testified to by Logan he did not buy for drinking purposes, but only to use the bottles of extract as evidence against defendant in this prosecution. But these sales could have no practical significance except as they might relate to counts 5 and 6, which will be effectively disposed of later in this opinion, and this unique point need not be decided.

Defendant's next contention is that the demurrer to the evidence adduced to prove the nuisance count should have been sustained. Under this assignment it is argued that the pleader mixed his tenses in the information in the manner held fatally defective in State v. Chiles, 64 Kan. 453, 67 P. 884. Hardly so. In that case the pleader charged that Chiles had formerly kept a place where liquors are now sold. Of course that was poor pleading, and the case was decided many years ago when the art of pleading occupied a relatively higher place in the practice of criminal law than it does today. (State v. Fleeman, 102 Kan. 670, 171 P. 618; State v. Seidel, 113 Kan. 390, 392, 214 P. 565.) Furthermore, the charge in this case is not justly subject to the criticism laid against the information in the Chiles case. Here the charge is that in the buildings and places described--

"On the day of January, 1925, and for two years prior thereto, and continually and on divers days and times . . . until the present time, January 2, 1925, . . . defendant kept and maintained and does now keep and maintain a common nuisance, etc."

Added to this were the characteristic adverbs, phrases and recitals of a criminal information, but the language quoted is sufficient to show that the nuisance count was sufficiently well pleaded to enable defendant to prepare his defense thereto and the court to pronounce sentence thereon upon a verdict of guilty. And that is all that is required to uphold a criminal pleading against a motion to quash (State v. Hutzel, 108 Kan. 456, 195 P. 887), and such a pleading is no less potent against a demurrer to the evidence. Indeed, demurring to the evidence was not a proper method of questioning the sufficiency of the nuisance charge; and there was no lack of evidence to support the verdict and judgment thereon.

The twelfth count of the information, on which a verdict of guilty was returned, charged a sale of liquor by defendant on the day of August, 1924, to one Fred Lewis. All the evidence to support this charge was that given by Fred Lewis, who testified:

"I bought Forbes' vanilla extract from J. H. Tudor here...