The City of Lincoln Center v. Linker

• Decision Date: 05 December 1896
• Docket Number: 244
• Citation: 5 Kan.App. 242,47 P. 174
• Parties: THE CITY OF LINCOLN CENTER v. CHARLES LINKER
• Court: Kansas Court of Appeals

47 P. 174

5 Kan.App. 242

THE CITY OF LINCOLN CENTER v. CHARLES LINKER

No. 244

Court of Appeals of Kansas, Northern Department, Central Division

December 5, 1896

December 5, 1896,

Appeal from Lincoln District Court. Hon. W. G. Eastland, Judge. Reversed.

Judgment reversed and case remanded.

George D. Abel, and David Ritchie, for appellant.

F. H Dunham, for appellee.

OPINION

GARVER, J.

The appellant, Charles Linker, was prosecuted in the Police Court of Lincoln Center on a complaint filed therein charging him with certain violations of ordinances number 113 and number 139, relating to the sale of intoxicating liquors and other drinks. On an appeal taken by him to the District Court, he was therein convicted on the sixth count of the complaint which charged him with the offense, under ordinance number 139, of selling a certain drink designated as "American Hop Ale" in a less quantity than one gallon. Said ordinance number 139, the validity of which has been sustained by the Supreme Court in In re Jahn Petitioner (55 Kan. 694, 41 P. 956), provided:

"That it shall be unlawful for any person or persons in this city to barter, sell or give away any malt, hop tea tonic, ginger ale, cider, or any other drink of like nature no matter by what name it may be called, in less quantities than one gallon, or permit or allow the same to be drunk at any stand, store or other place of sale."

Ordinance number 113 prohibited the unlawful sale of intoxicating liquors, while ordinance number 139 was aimed at certain sales of non-intoxicating drinks.

The first ruling of the court complained of is its refusal to sustain the appellant's motion to quash the complaint. In this no error was committed. The motion is general as to the whole complaint, which embraces seven separate counts. Hence, if any count was not open to the objection made, the motion was properly overruled. As against this motion, we think an offense was sufficiently charged in the sixth count. The special contention of counsel for the appellant is, that the complaint is insufficient because it fails to state to whom the unlawful sale was made. This we think was unnecessary. Although the decisions of the courts on this question are very far from uniform, yet, we think the better reason and authority sustain the proposition that in this class of cases it is unnecessary to state to whom the unlawful sale was made.

"The offense complained of worked no injury upon the individual rights of the person to whom the sale was made, and none was supposed to have been violated; and, hence, the designation of such person by name is in no way material to constitute the offense." The State v. Schweiter, 27 Kan. 499, 512. See also, The State v. Becker, 20 Iowa 438; Cannady v. The People, 17 Ill. 158; Myers v. The People, 67 id. 503; State v. Jaques, 68 Mo. 260; State v. Bielby, 21 Wis. 204; State v. Munger, 15 Vt. 290; Riley v. State, 43 Miss. 397; People v. Adams, 17 Wend. 475; State v. Parnell, 16 Ark. 506; State v. Heldt, 41 Tex. 220.

Error is also assigned upon the instructions of the court. For a conviction under the sixth count of the complaint, the city elected to rely upon a sale made to one A. J. Harland. The court instructed the jury that they should find the defendant guilty on this count if they believed from the...