State v. Wellman

• Decision Date: 10 November 1923
• Docket Number: 24,746
• Citation: State v. Wellman, 114 Kan. 671, 220 P. 271 (Kan. 1923)
• Parties: THE STATE OF KANSAS, Appellee, v. JOHN WELLMAN, Appellant
• Court: Kansas Supreme Court

220 P. 271

114 Kan. 671

THE STATE OF KANSAS, Appellee, v. JOHN WELLMAN, Appellant

No. 24,746

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.

1. LIQUOR LAW--Maintaining a Nuisance--Matters To Be Considered in Determining Validity of Preliminary Examination. The validity of a preliminary examination and whether defendant has been sufficiently advised as to the charge upon which he is to be tried, depends not only upon the testimony adduced at such examination, but, also upon the information disclosed by the complaint and warrant, and all other matters of procedure before the magistrate of which the defendant has notice.

2. SAME--Evidence Sustains Verdict. The evidence examined and found to have been sufficient to warrant its submission to the jury and to sustain a verdict based thereon.

3. SAME--Instructions Must Be Read and Considered In Their Entirety. The charge given to the jury is to be read and considered in its entirety and an inaccurate expression should not be regarded as a ground for a reversal where it appears from the whole of the instruction that the jury could not have been misled by the inaccuracy. Following The State v. Killion, 95 Kan. 371, 148 P. 643.

4. SAME--Other Specifications of Error Without Merit. Other specifications of error examined and found to be without substantial merit.

H. S Hines, of Arkansas City, and Edward J. Fleming, of Tulsa, Okla., 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 of maintaining a nuisance under the prohibitory liquor law. His principal specifications of error are, that the trial court erred in not sustaining his plea in abatement, in overruling his motion for a directed verdict, in the giving of certain instructions, and refusal to give others.

The original complaint and warrant, on which defendant's preliminary examination was held, charged in the first count a former conviction and the felonious sale of intoxicating liquor. The second count charged a former conviction and the felonious keeping of a place for the unlawful sale and use of intoxicating liquor.

The record discloses that, at least one continuance was taken, pending defendant's preliminary hearing. An information was filed in the district court containing two counts, as in the original complaint and warrant. To this information the defendant filed a plea in abatement, to which the county attorney filed a general denial. On the hearing of the plea in abatement, the transcript of the justice's docket was introduced in evidence. It contained this entry:

"September 9, 1921. The court on hearing testimony of witnesses and being advised of the premises, I do find that a crime has been committed and that there is probable cause for believing that the defendant, John Wellman, is guilty of its commission."

The district court sustained the plea as to the first count and overruled it as to the second, and in that condition the case went to trial.

The evidence showed that in the month of July, 1921, defendant's home was searched by two officers under a search and seizure warrant. They found six or seven cases of twenty-four small bottles to the case, of what is commonly known as "home brew" beer. The defendant requested that one of the bottles be taken to a chemist for analysis. This was done, the analysis showing that it contained 5.6 per cent alcohol by volume. The defendant paid to have the analysis made. In addition to the cases of "home brew" the officers also found two quart bottles, which, according to a fire test, contained alcohol, commonly called "corn whiskey." They also found a can of malt and a package of hops; also a large quantity of new tops for bottles, which had never been used, and some half dozen empty cases. Also a number of empty bottles. At the time of their search, they found two strangers at the house; saw them pour out "home brew" and drink it. Another witness testified that he had, at various times, procured home brew at the home of the defendant; that it was in small bottles like the ones above mentioned; that he bought it there three or four times and drank it there; that he bought it from the defendant; that once or twice he had seen other people drink there--drink the same stuff that he had drunk; that he paid twenty-five cents a bottle for the liquor. An iceman testified, that on delivering ice at defendant's house, he got liquor out of the icebox; that he saw defendant drink it and defendant called it "home brew beer"; that there were usually five or six bottles in the ice box; that he never drank enough to intoxicate him, as he never drank more than one bottle at a time. Another iceman testified that he got liquor out of the ice box whenever he wanted a bottle to drink and that he got it there something like half a dozen times; that he guessed it was home brew; that he never drank but one bottle at a time.

1. The defendant contends that the transcript of the examining magistrate was insufficient, as a basis for the filing of the information, and that the trial court erred in denying his plea in abatement. He stresses the point that there were two counts in the original complaint and warrant, and inasmuch as the examining magistrate found that there was probable cause for believing that a crime had been committed, and that defendant was guilty of "its" commission, that defendant did not know, and the court was unable to say which crime had been committed; whether that mentioned in the first or the second count. The defendant's contention is based upon remarkably narrow ground. The validity of his preliminary examination as to whether he was sufficiently advised of the charge against him depended not only upon the testimony adduced at such trial, but also upon other matters of procedure, including the complaint and the warrant. One continuance was had during the time the matter was pending before the examining magistrate. The recognizance on continuance stating that the defendant should appear "then and there to answer the charge of violation of the liquor laws, two counts pending against him." Following his examination, the commitment stated that, "Whereas, it appears that the offense of violating the prohibitory liquor law has been committed and that there is probable cause to believe that the defendant John Wellman is guilty of the commission, etc."

Several of the same witnesses who testified at the trial in the district court had also testified at the preliminary examination. They testified on behalf of the state and were cross-examined by the attorney for the defendant. All of these matters taken into consideration, abundantly support the claim of the state that the defendant had a legal and sufficient preliminary examination and was fully advised of the charge against him. If...