State v. Whisner

• Decision Date: 07 May 1886
• Citation: 35 Kan. 271,10 P. 852
• Parties: THE STATE OF KANSAS v. ROBERT WHISNER
• Court: Kansas Supreme Court

10 P. 852

35 Kan. 271

THE STATE OF KANSAS v. ROBERT WHISNER

Supreme Court of Kansas

May 7, 1886

[Copyrighted Material Omitted]

Appeal from Linn District Court.

ON July 15, 1885, the county attorney of Linn county filed the following information against Robert Whisner, (omitting court and title:)

"Whereas upon a certain inquiry by and before me, lately instituted and carried on at the city of La Cygne, in said Linn county in the state of Kansas, into and concerning certain violations of an act of the legislature of the state of Kansas, entitled 'An act amendatory and supplemental to chapter 128 of the Session Laws of 1881, being an act, entitled 'An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes,' approved March 7, 1885, and of the act to which said act is amendatory and supplemental, to me theretofore duly alleged and notified, the testimony of certain witnesses, to wit, John L. Beckman, John R. Gaines, Gala J. Goss, William L. Michael, Elmer E. Deel, then and there attending, appearing and deposing before me, in obedience to my certain subpena so commanding, theretofore duly issued and served, each of said witnesses having been by me first duly sworn to testify the truth, the whole truth and nothing but the truth, and true answers make to all questions which by me might be propounded touching any violations of the provisions of said acts, or of either of them, and which testimony was then and there reduced to writing, and signed by said witnesses respectively, and is now filed herewith, did and does disclose that one Robert Whisner had committed, at said Linn county, in the state of Kansas, the several certain offenses hereinafter specifically and formally charged as the same are hereinafter charged; and did have and has in his possession at the place hereinafter charged and described, the property hereinafter described, and then and there kept and used and keeps and uses the same for the unlawful purposes hereinafter charged:

"Now, therefore, I, Selwyn Douglas, county attorney of Linn county, in the state of Kansas, in the name and by authority of the state of Kansas, come now here and give the court to understand and be informed that Robert Whisner, at the county of Linn, in the state of Kansas, on the 1st day of May, 1885, without having procured from the probate judge of said county any permit to sell intoxicating liquors, did then and there unlawfully sell and barter spirituous, malt, vinous, fermented and other intoxicating liquors."

[The 2d, 3d, 4th, 5th, 6th and 7th counts are omitted, as they are substantially in the form of the first count, excepting the offenses therein charged are alleged to have been committed on May 30, 1885, on June 13, 1885, on June 15, 1885, on June 17, 1885, and on June 22, 1885, and excepting that the second and following counts recited that the sale was other than the one last charged.]

"Wherefore, I, Selwyn Douglas, county attorney as aforesaid, in the name and by the authority of the state of Kansas, do pray that a warrant may issue for the arrest of the said Robert Whisner; and that such other and further proceedings may be had as in such cases provided by law.

SELWYN DOUGLAS,

County Attorney of Linn County, Kansas."

"STATE OF KANSAS, LINN COUNTY, ss.--Selwyn Douglas, county attorney of said Linn county, being by me first duly sworn, deposes and says that the foregoing information subscribed by him is true, according to the best of his information and belief; and he further says that no permit has ever been issued to said defendant, Robert Whisner, by the probate judge of said county to sell intoxicating liquors.

SELWYN DOUGLAS.

"Subscribed and sworn to before me, on this 15th day of July, 1885. [Seal.] W. A. C. KERMAN,

Clerk District Court Linn Co., Kansas."

The testimony of the following witnesses indorsed on the information, to wit, John L. Beckman, John R. Gaines, Gala J. Goss, William L. Michael and Elmer E. Deel, was reduced to writing and filed with the information. On said 15th day of July, a warrant was issued for the arrest of the defendant, and said defendant, after having been taken into custody, entered into a recognizance for $ 500 for his appearance at the next term of the court. On July 22, 1885, the defendant made a motion to discharge the recognizance for various reasons, among others, that the information was not verified according to law.

Trial had at the November Term of the court for 1885. Before proceeding to trial, the defendant interposed a challenge to the array of the regular panel of jurors, on the ground that the jury had been illegally impaneled. After the hearing of the evidence, the court overruled the challenge. The defendant also objected to the introduction of any testimony, which objection was overruled. Thereupon, the defendant moved the court to require the state to elect upon which of the several counts in the information it would rely. The court granted the motion, and the state elected to proceed upon the 1st, 2d, 3d, 5th, and 7th counts in the information, and a nolle prosequi was entered as to the 4th and 6th counts. The jury returned a verdict of guilty against the defendant, as charged in the information, upon the 1st, 2d and 7th counts thereof, and not guilty as to the 3d and 5th counts. On November 21, 1885, the defendant filed a motion for a new trial, which was overruled. On the same day the defendant filed a motion in arrest of judgment, which was overruled, excepting as to the 7th count, and the court refused to sentence the defendant thereon; but thereafter sentenced the defendant upon the 1st count to pay a fine of $ 250 and to be imprisoned in the county jail for the period of sixty days; and upon the 2d count to pay a fine of $ 250 and to be imprisoned in the county jail for the period of sixty days; and that he be adjudged to pay all the costs. The defendant excepted to all the rulings of the court, and brings the case here.

Judgment affirmed.

W. R. Biddle, and J. D. Snoddy, for appellant.

Selwyn Douglas, county attorney, and Blue & Rich, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The defendant was convicted upon two separate counts of an information, charging him with violations of the provisions of the prohibitory liquor law. He was sentenced to pay fines amounting in all to $ 500, and to terms of imprisonment aggregating four months in the county jail of Linn county. From the judgment he appeals. It is urged that the information is insufficient, and that the proceedings against the defendant were not by due course of law. In support thereof, it is said that the information did not give to the defendant the nature and cause of the accusation against him, and that the proceeding against him was not by the ordinary course established at the common law. Neither of these points is well taken.

In prosecutions of this character, it is not necessary to state the kind of liquor sold, or the name of the person to whom sold, for the statute expressly and specifically provides that these things need not be stated. (Laws of 1885, ch. 149, § 14; The State v. Schweiter, 27 Kan. 499; The State v. Sterns, 28 id. 154; The State v. Olferman, 29 id. 502; The State v. Shackle, 29 id. 341; The State v. Brooks, 33 id. 708.) In this case, however, the defendant had no reason to complain of being ignorant as to the offenses he was called upon to defend. The testimony of the principal witnesses as to sales of intoxicating liquors made by him was reduced to writing and filed with the information. Therefore, before the trial began, he was notified that John Beckman, whose name was indorsed upon the information as a witness, had testified that he had frequently drank whisky and beer in his saloon at different times since March 10, 1885; and that about the first of May, 1885, John Gaines treated him in the saloon to a glass of whisky. He was also notified by the written testimony that John Gaines, whose name was upon the information, had testified that during the spring and summer of 1885 the defendant was keeping a billiard saloon in La Cygne, and that about May 1, 1885, he bought of him, in his saloon, two glasses of whisky, which he poured out; and that about June 15, 1885, he bought of him, in the same saloon, a drink of whisky and cider mixed together, and at the same time saw other parties get and drink the same kind of mixture. Other witnesses, whose names were upon the information, had also testified to specific sales of intoxicating liquors made by the defendant in his saloon in 1885, and before the filing of the information, and also the kind of intoxicating liquors sold by him at said times. Of course the defendant had the right to suppose that these witnesses would testify upon the trial to the same facts set forth in the testimony filed with the information. Therefore he was given fair notice of the offenses charged against him; of the kind of intoxicating liquors sold by him; and when he sold the same and to whom he sold the same. In this case, the letter and spirit of § 10 of the bill of rights were complied with, as the defendant was informed of the nature and the cause of the accusation against him with great particularity.

An attempt is made to question the constitutionality of § 8 of said chapter 149, giving county attorneys power to subpena and examine witnesses concerning violations of that act. From the record, however, this question is not before us for decision. None of the witnesses who were subpoenaed and examined before the county attorney of Linn county on July 13, 1885, concerning the violations...