The City of Fort Scott v. Dunkerton

• Decision Date: 09 May 1908
• Docket Number: 15,794
• Citation: The City of Fort Scott v. Dunkerton, 96 P. 50, 78 Kan. 189 (Kan. 1908)
• Parties: THE CITY OF FORT SCOTT v. JOSEPHINE DUNKERTON AND CHARLES DUNKERTON
• Court: Kansas Supreme Court

96 P. 50

78 Kan. 189

THE CITY OF FORT SCOTT v. JOSEPHINE DUNKERTON AND CHARLES DUNKERTON

No. 15,794

Supreme Court of Kansas

May 9, 1908

Decided January, 1908.

Appeal from Bourbon district court; WALTER L. SIMONS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL PLEADINGS--Motion to Quash Complaint Containing Several Counts. A motion to quash directed at an entire complaint containing several counts, some of which are bad can not be sustained if the complaint contains one good count.

2. CRIMINAL PLEADINGS--Objection to the Introduction of Evidence. An objection, made when the first witness is about to testify, to the admission of any testimony is not a proper method of testing the sufficiency of a criminal accusation.

3. CRIMINAL PLEADINGS--Sufficiency Attacked after Verdict--Concurrence of Time--Surplusage. After a conviction upon a charge of maintaining a nuisance at a certain place on certain days, judgment will not be arrested because it was alleged in the complaint that the defendant kept a place where intoxicating liquors were and are sold and where persons were and are permitted to resort for the purpose of drinking such liquors. The words "and are" may be treated as surplusage.

4. CRIMINAL PLEADINGS--Intoxicating Liquors--Nuisance--Negative Averment --Dwelling-house. In a charge of keeping and maintaining a nuisance it is not necessary to include the negative averment that the place kept and maintained is not a dwelling-house.

W. F. Jackson, for appellee.

J. M. Humphrey, and Osborn & Osborn, for appellants.

OPINION

JOHNSTON, C. J.:

Josephine Dunkerton and Charles Dunkerton were prosecuted for the violation of a city ordinance of Fort Scott prohibiting the sale of intoxicating liquors and the keeping of a place where such liquors were sold. The complaint contained ten counts, nine of which charged sales of intoxicating liquors and one the maintaining of a nuisance. After a conviction in the police court the defendants appealed to the district court, where a trial was had which resulted in a conviction upon the charge of maintaining a nuisance. Each was sentenced to imprisonment for six months and to pay a fine of $ 500. In their appeal to this court they challenge the sufficiency of the complaint upon which the conviction rests. Counsel for the city insists that the question is not properly presented here for review. The appellants sought to test the complaint by a motion to quash, directed at the entire complaint, containing ten counts, but as some of the counts were unquestionably good the motion could not be allowed, even though the single count upon which they were subsequently convicted was obviously defective. (The State v. Elliott [Kan. 1901], 64 P. 1027.)

The defendants also undertook to raise the question by an objection to the admission of any testimony under the complaint. After the jury had been sworn and when the first witness was called upon the stand and questioned the objection was made and overruled. It has been repeatedly held that such an objection is not a proper method of testing the sufficiency of a criminal accusation, and hence there was no error in the ruling. (Rice v. The State of Kansas, 3 Kan. 141; The State v. Jessup, 42 Kan. 422, 22 P. 627; The State v. Ash, 44 Kan. 84, 24 P. 72; The State v. Prior, 53 Kan. 657, 37 P. 169.)

The defendants finally sought to raise the question on a motion in arrest of judgment, which specifically alleged that the count upon which they were convicted did not state a public offense. While a technical error in form or an imperfection in the statement of a complaint which might be held bad on a ...