State v. Teissedre , 30 Kan. 476 ( 1883 )

The opinion of the court was delivered by

Valentine, J.:

This was a criminal prosecution, brought by the state of Kansas against Camille Teissedre, under § 13 of the prohibitory liquor law, charging the defendant with keeping and maintaining a common nuisance. The information reads as follows, (omitting the caption and verification:)

“In the name and by the authority of the state of Kansas, I, Theodore Laing, county attorney in and for the county of Cloud, in said state, who prosecute for and in behalf of said state, in ,all courts sitting in and for said county of Cloud, and duly empowered to inform of offenses committed within said county, come now here and give the court to understand and be informed, that Camille Teissedre, on, to wit, the first day of June, A. D. 1881, and on divers other days and times between that date and the day of the filing of this information in said county of Cloud, did keep the place known and described as the west room of Bartlett & Crump’s brick block, situated on lot one of block five in the city of Clyde, in said Cloud county; and in said place the said Camille Teissedre, as well as divers other persons, with the knowledge and consent of the said Camille Teissedre, then and on said other days and times unlawfully did sell, barter, give away, and keep for sale, barter and use, intoxicating liquors, in violation of the act of the legislature of the state of Kansas, approved February 19,1881, 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/ to the common nuisance of the people of said state of Kansas, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.”

The case was tried before the court and a jury on October 25, 1881, and the defendant was found guilty and adjudged to pay a fine of $150, and costs of suit, and was ordered to stand committed to the county jail until such fine and costs were paid; and it was further ordered that the sheriff of the county be directed to shut up and abate the nuisance. On October 26, 1881, the defendant served proper notices for the purpose of taking an appeal to the' supreme court. No further attention was given to the case until July 31, 1882, when the defendant filed a transcript of the case in the supreme court. The defendant also claims that other notices of appeal were properly served on August 10, 1882; but no sufficient evidence of the service of these last-mentioned notices has ever been presented to the supreme court. Afterward, and on July 5, 1883, the defendant’s appeal was dismissed from the supreme court, on the ground that the transcript was not filed within thirty days after the first notices of appeal were given, and that there was no sufficient evidence that the second notices were ever given. (The State v. Teissedre, ante, p. 210.) Afterward, and on July 17, 1883, the defendant again served proper notices of appeal, and on July 24, 1883, the transcript of the ease was again filed in the supreme court. The attorney general now moves to dismiss the defendant’s last appeal, upon the grounds that the service of the notices of appeal on October 26, 1881, constituted a complete and perfect appeal; that the defendant can have but one appeal; that his first and only legal appeal has been dismissed by the supreme court; and that the district court has been directed by the supreme court to carry the-original judgment into execution. The argument of the attorney general upon this motion is able and plausible;^* but still we do not think that his motion should be sustained. On the contrary, we think it should be overruled; and it will be overruled, upon the gronnds stated in the case of In re Chambers, ante, p. 450. We think that any defendant, who has been convicted of a public offense in the district court,, may continue to take appeals to the supreme court until he has finally completed and perfected his appeal and got the case into the supreme court in such a manner as to authorize the supreme court to hear and determine the case upon its-merits. And we think that no appeal is completed or perfected, and that the supreme court is not authorized to hear and determine the case upon its merits, against the objections of counsel representing the state, until a transcript of the case is filed in the supreme court, and filed within thirty-days after proper notices of appeal have been given, and within two years after the judgment in the case has been rendered. We shall now proceed to consider the case upon its merits.

The defendant’s counsel set forth eight different grounds upon which they claim that the judgment of the court below should be reversed, none of which grounds -we think are tenable, and all must be overruled.^†

Here this opinion might properly close, as counsel for the defendant have not seen proper to refer us specifically to the particular pages of the record which they desire us to examine on each of the points made. We shall, however, briefly discuss the principal points made by counsel.

I. We think that said § 13 of the prohibitory liquor law is constitutional, so far as it has application to this case.

II. We do not think that the information upon which the defendant was prosecuted is fatally defective in not setting forth facts sufficient to constitute a public offense, simply “because it does not charge that the defendant had no permit or license to sell” intoxicating liquors. There is no-necessity for any such allegation, for the offense of keeping: and maintaining a common nuisance under § 13 of the prohibitory liquor law may be committed as well where the-party has a license or permit to sell intoxicating liquors as-where he has no such license or permit. If a party sells intoxicating liquors for any purpose, except medical, scientific;, or mechanical purposes, he may commit the offense of keeping and maintaining a common nuisance under § 13 of the1 prohibitory liquor law, as well with a license or permit as without the same; and the evidence clearly showed that the defendant did sell intoxicating liquors for other purposes, than the excepted purposes. Said § 13 says nothing about ai license or permit, but simply says that all places where intoxicating liquors are manufactured or sold in violation of the-provisions of the prohibitory liquor law are common nuisances, and that anyjparfcy keeping and maintaining the same is-guilty of keeping and maintaining a common nuisance. Also, with reference to the sufficiency of informations, see The State v. Shackle, 29 Kas. 341, and The Slate v. Hunt, 29 id. 762. In cases of this kind, where the information does not state specifically the acts of the defendant in keeping and maintaining a common nuisance, but states such facts only in general language, it would be very proper for the district court, exercising a sound judicial discretion, to order that the county attorney file a bill of particulars setting forth the specific acts which the county attorney claims constitute the keeping and maintaining such common nuisance. In that way the defendant can be well informed as to what specific acts he will be called upon to defend against.

III. The court below did not err in permitting the state to show that the defendant did not have any druggists’ permit or license to sell intoxicating liquors; for if he sold intoxicating liquors without having any such permit, then the evidence clearly tended to prove that he was guilty of the pffenses charged in the information.

IV. It was no error for the court below to permit the county attorney to indorse the names of additional witnesses on the information, and' then to allow them to testify in the case. (The State v. Cook, ante, p. 82.) This the court has power to do, exercising a sound judicial discretion.

V. It was no error for the court, exercising a sound judicial discretion, to permit the case to be opened during the closing argument of the counsel for the defense, and then to permit the state to prove in what county and state the alleged offense was committed. (Cr. Code, §227; 1 Bishop on Cr. Proc., § 966, and cases there cited.)

VI. It was no error for the court below to instruct the jury “that beer is presumed to be intoxicating, until the contrary is proved.” In the absence of evidence to the contrary, beer will always be presumed to be an intoxicating liquor, (The State v. Volmer, 6 Kas. 371; Briffitt v. The State of Wisconsin, decided by the supreme court of Wisconsin, May 31, 1883, 16 N. W. Rep. 39; same case, 58 Wis., and cases there cited; The State v. Lemp, 16 Mo. 389; Markle v. Town of Akron, 14 Ohio, 586.)

VII. We cannot tell whether the court erred or not, in refusing to give certain instructions to the jury, for the reason that the instructions given have not been brought to this court.

VIII. We do not think the court erred in overruling the motions of the defendant for a new trial, and in arrest of judgment; for, as we think, the information, the evidence, and the verdict of the jury were sufficient to sustain the judgment; and no sufficient error was committed by the court at any stage of the proceedings giving the defendant a right to a new trial.

The judgment of the court below will be affirmed.

All the Justices concurring.

* See The State v. Teissedre, ante, p.213.

† See The State v, Teissedre, ante, p. 211.