State v. Wester

• Decision Date: 07 November 1903
• Docket Number: 13,638
• Citation: 74 P. 239,67 Kan. 810
• Parties: THE STATE OF KANSAS v. R. W. WESTER
• Court: Kansas Supreme Court

74 P. 239

67 Kan. 810

THE STATE OF KANSAS v. R. W. WESTER

No. 13,638

Supreme Court of Kansas

November 7, 1903

Decided July, 1903.

Appeal from Reno district court; M. P. SIMPSON, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

CRIMINAL PROCEDURE--Information--Duplicity. An information that charges two separate and distinct offenses in one count is bad for duplicity, and a motion to quash for this reason should be sustained.

C. C Coleman, attorney-general, Carr W. Taylor, and J. U. Brown, for The State.

Prigg & Williams, for appellant.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

The appellant, with three others, was informed against for maintaining a nuisance under the prohibitory law. The appellant was separately tried, convicted, and sentenced, from which he appeals. The charging part of the information reads:

"That in a certain building in the city of Plevna, in said county and state, on lots numbers seventy-nine (79), eighty-one (81), and eighty-three (83), on South Main street, in said city of Plevna, in a certain building known as a livery barn and in a certain one-story building situated on said lots, known as the barber shop, are both places where intoxicating liquors are unlawfully sold, bartered, and given away by the said defendants, R. W. Wester, Emert Beaucamp, John Hoffner, and George Callahan, and that both the said places above described, situated on said lots 79, 81, and 83, South Main street, in said city of Plevna, as aforesaid, are places where people resort, and are permitted to resort, by the said defendants and each of them for the purpose of drinking intoxicating liquor as a beverage, and where intoxicating liquors are unlawfully kept by the said R. W. Wester, Emert Beaucamp, John Hoffner and George Callahan for unlawful sale, gift, barter and delivery and are sold by said defendants, to the common nuisance of the people of the state of Kansas. . . ."

The defendant filed a motion to quash this information because there were two separate and distinct offenses charged in the same count. The motion was overruled, and after the jury returned their verdict of guilty the defendant moved in arrest of judgment for the same reason, which motion was overruled. He then filed his motion for a new trial, and upon argument this motion was also overruled and he was sentenced. The only errors complained of are the overruling of these motions, which have their foundation in the insufficiency of the information.

There were two separate buildings upon the lots described in this information, one a barber shop and the other a livery barn. The information charged that the parties informed against were guilty of maintaining a nuisance in each of said buildings. These were separate and distinct offenses. The evidence which would prove the maintenance of a nuisance in one would not necessarily prove the maintenance of a nuisance in the other. If the jury should find the defendant guilty as charged in the information, it would be the duty of the...