State v. Wilson

• Court: Kansas Supreme Court
• Writing for the Court: PRICE
• Citation: State v. Wilson, 220 P.2d 121, 169 Kan. 659 (Kan. 1950)
• Decision Date: 08 July 1950
• Docket Number: No. 38041,38041
• Parties: STATE v. WILSON.

Page 121

220 P.2d 121

169 Kan. 659

STATE v. WILSON.

No. 38041.

Supreme Court of Kansas.

July 8, 1950.

Rehearing Denied July 18, 1950.

Syllabus by the Court.

1. In a prosecution for the alleged violation of the provisions of Sec. 50, Ch. 242, Laws of 1949, prohibiting, after a certain date, the possession in excess of two quarts of alcoholic liquor, the containers of which do not have Kansas tax stamps affixed thereto, the record is examined and it is held: There was a failure of proof on the part of the state and the defendant is entitled to be discharged.

2. In a prosecution for the alleged violation of the provisions of Sec. 1, Ch. 245, Laws of 1949, making it unlawful for one holding a license for the retail of cereal malt beverages to possess alcoholic liquor upon or in the premises so licensed, the record is examined and it is held:

1. The jury was properly instructed on all matters in issue;

2. The giving of a belated instruction, in answer to a question propounded by the jury after it had begun its deliberations, was not error;

3. Under the facts and circumstances of the case, more fully set out in the opinion, the substance of such additional instruction was a correct statement of law;

4. There was sufficient competent evidence to support the jury's finding of guilt and no prejudicial error appears in the record.

Karl V. Shawver, of Paola, argued the cause, and Karl V. Shawver, Jr., of Paola, was within him on the briefs for the appellant.

John Anderson, Jr., County Attorney, Olathe, argued the cause and was on the briefs for the appellee.

PRICE, Justice.

Defendant was charged and tried on seven counts of alleged liquor and gambling violations. She was found guilty on counts two and three and acquitted on the remainder. Her motions in arrest of judgment and for a new trial being overruled, she has appealed.

Count two charged: '* * * that on the 16th day of July, 1949, in said County of Johnson, and State of Kansas, one Eva Wilson did then and there unlawfully have in her possession in excess of two quarts of alcoholic liquor upon which the tax imposed by the Kansas Liquor Control Act has not been paid, and the contents [containers] of which did not have Kansas tax stamps affixed thereto, * * *.'

Count three charged: '* * * that on the 16th day of July, 1949, in said County of Johnson, and State of Kansas, one Eva Wilson did then and there unlawfully have alcoholic liquor in her possession on the following described premises, to-wit: The Southeast Corner of the South one-half (1/2) of the Northeast Quarter (NE 1/4) of Section Twenty-eight (28), Township twelve (12), Range Twenty-three (23), in said County and State, and lying between Highways #10 and #7.' Said premises being licensed in the name of said defendant, Eva Wilson, for the retail sale of cereal malt beverages, * * *'

The defendant was the owner and operator of what is known as 'Eva's Tavern' northwest of Olathe at the junction of State highways 10 and 7. The property consisted of a filling station, cabins and a main building in which were located a bar for dispensing cereal malt beverages and soft drinks, a dance floor and tables or booths where customers were served. The kitchen was in the rear of the main building and the defendant maintained her sleeping quarters immediately above, all in the same building. Access to the sleeping quarters was had by a stairway leading up from the kitchen. The state's evidence tended to establish that from time to time the defendant had kept intoxicating liquors in the upstairs, part of the main building or in the stairway behind a locked door leading upstairs, and that she had been selling intoxicating liquor by the drink and had permitted customers to consume intoxicating liquor in the tavern. On July 16, 1949, her place was raided by county law enforcement officers under a search warrant. At first the defendant refused to unlock the door leading upstairs, but finally did so. In her sleeping quarters the officers found two cases containing liquor, one containing twenty-three pints of whiskey and the other seven bottles of gin. For present purposes we confine ourselves to the evidence pertaining to count two.

It will be noted that this count charged the defendant with possession of in excess of two quarts of alcoholic liquor upon which the Kansas tax had not been paid and the containers of which did not have Kansas tax stamps affixed thereto, in violation of Sec. 50, Ch. 242, Laws of 1949. It is conceded that the Governor's proclamation provided for under Sec. 112 of the Act had been in full force and effect for more than thirty days prior to July 16, 1949, and that on that date it was unlawful for any person to have in his possession in excess of two quarts of alcoholic liquor upon which the Kansas tax had not been paid and the containers of which did not have Kansas tax stamps affixed thereto. During the course of the trial, upon motion of defendant, the state was required to elect as to which of the two charges contained in count two it relied on for conviction, and pursuant thereto, in open court, amended count two so as to charge the defendant merely with the unlawful possession of more than two quarts of alcoholic liquor, the containers of which did not have the Kansas tax stamps affixed thereto as required by law. In other words, the question whether the Kansas tax had been paid was removed from count two by the amendment and all that remained was the question concerning whether the bottles had the Kansas tax stamps affixed.

There is no contention but that the twenty-three pint bottles in the case introduced as Exhibit 'E' and the seven bottles in the case introduced as Exhibit 'D' contained alcoholic liquor. The question is--did defendant have possession of more than two quarts upon the containers of which there were no Kansas tax stamps affixed. The record before us shows that only one pint bottle of whiskey from Exhibit 'E' and one bottle of gin (size not shown) from Exhibit 'D', on neither of which was there attached a Kansas tax stamp, were specifically introduced in evidence before the jury. On oral argument before this court co...