State v. Turner

• Court: Kansas Supreme Court
• Writing for the Court: HOPKINS, J.:
• Citation: State v. Turner, 114 Kan. 721, 220 P. 254 (Kan. 1923)
• Decision Date: 10 November 1923
• Docket Number: 25,143
• Parties: THE STATE OF KANSAS, Appellee, v. HENRY TURNER, Appellant

220 P. 254

114 Kan. 721

THE STATE OF KANSAS, Appellee, v. HENRY TURNER, Appellant

No. 25,143

Supreme Court of Kansas

November 10, 1923

Decided July, 1923.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

LIQUOR LAW--Various Assignments of Error Not Well Founded. Various assignments of error in an action under the prohibitory liquor law are held not to be well founded.

H. S Hines, of Arkansas City, for the appellant.

C. B. Griffith, attorney-general, John F. Rhodes, assistant attorney-general, and C. H. Quier, county attorney, for the appellee.

OPINION

HOPKINS, J.:

The defendant appeals from a conviction under the prohibitory liquor law. The information charged:

"That on the day of April, 1923, in the county of Cowley and state of Kansas, the defendant Henry Turner did then and there unlawfully, feloniously, keep and have intoxicating liquors in his possession for personal use or otherwise, and that the said Henry Turner had theretofore on the 14th day of February, 1922, in the District Court of Cowley county, Kansas, been duly convicted of violation of the prohibitory laws of the state of Kansas."

The testimony showed that defendant conducted a small restaurant, near which he resided in another building; that just south of his property is a vacant lot; that in the night of a day of April, 1923, three officers of Arkansas City secreted themselves on the side of the vacant lot; that soon thereafter the defendant came from his house to the vacant lot and picked up a bottle and returned to the house. In a few minutes he came back to practically the same place and hid something in the grass. At that time the officers fired some shots into the air and threw their flash lights on him and identified him. When they did so he ran into the house. The officers went immediately to where the defendant had been and found a three-ounce bottle of corn whisky. They immediately thereafter went into the house and arrested defendant. He waived preliminary examination and was bound over to the district court.

The defendant complains of remarks by the court; of the introduction of certain testimony; the refusal to give instructions requested by him; and the giving of certain other instructions.

1. The county attorney, in referring to the locality of defendant's premises, in his opening statement, said: "I believe the testimony will show that that is a bad district down there." The defendant objected to the statement, whereupon, the court stated: "I suppose the reputation of the community would not have anything to do with it. If you have a reputation on the defendant and on the house it may be shown." There was nothing improper in the remark of the court. However, it appears that the county attorney immediately asked that his objectionable remark be stricken out. No objection was made by the defendant to the remarks of the court, and it is probable the jury gave the matter no consideration. Under all the circumstances it cannot be said that any prejudice resulted to the defendant. Furthermore, error cannot here be predicated upon a matter without having first given the trial court the opportunity to pass upon it. (Hill v. Railroad Co., 113 Kan. 489, 215 P. 310.)

2. The defendant contends that the court erred in receiving testimony of liquor having been found on the same premises on other occasions. The state contends that this testimony was introduced to corroborate its claim of defendant's having been in possession of liquor on the night of his arrest. On the part of the defendant it was shown that on the night of his arrest he was sitting at his table eating his supper; that a strange colored man whom he...