State v. Gomes , 9 Kan. App. 63 ( 1899 )

The opinion of the court was delivered by

Mahan, P. J.:

This is an appeal from a judgment of conviction for a violation of the prohibitory law. The complaint was first filed with a justice of the peace. During the progress of the trial and before the state rested, the defendant and his counsel wilfully absented themselves from the court, and during their absence the court proceeded with the trial and received the verdict of the jury. The next morning the defendant with his counsel appeared in court and urged their absence as a ground for arresting the judgment of the court. His motion was overruled, and he was sentenced to pay a fine of $200 and to be committed to the county jail for thirty days. He appealed to the district court. In that court, the defendant moved his discharge for the reason that the district court had acquired no jurisdiction of his person or to try the offense, because the justice’s court had entered judgment without jurisdiction by reason of his absence from that court, and, hence, the appeal gave the district court no jurisdiction. He also filed a plea of former acquittal, based upon the same facts. The court denied his motion to discharge, and overruled his plea of former acquittal.

At the commencement of the trial in the district court, the county attorney dismissed as to the third count of the complaint, whereupon the defendant moved the court to require the county attorney to designate what' particular sale he dismissed with the third count of the complaint. This was likewise denied by the district court. The defendant then objected to the introduction of any evidence, upon the ground that the court was without jurisdiction to try the case, and that the erroneous proceedings of the justice of the peace amounted, in law, to an acquittal. At the conclusion of the state’s evidence the defendant moved the court to require the county attorney to elect upon what particular sales he relied for conviction upon the first count of the complaint. The court announced that it would not require an election until the evidence was all in. Defendant then announced that he would introduce no evidence “under the circumstances.’’ Thereupon the state made its election. The defendant thereupon moved the court for his discharge for the reason that there was no election made until after the defendant had rested his case, which motion was denied. He then asked that he be discharged for the reason that the sale relied upon by the state for conviction under the first count of the complaint was not the same sale relied upon in the justice’s court, which was denied. There was a verdict of guilty upon the first count, charging a sale, and upon the fifth count, for maintaining a nuisance.

The defendant then filed his motion for a new trial, which was denied, and then his motion in arrest of judgment upon four several grounds, as follows: (1) That the court had no jurisdiction of the defendant ; (2) because the court had overruled his motion to discharge on his plea of former jeopardy ; (3) because the court refused to require the state to designate what offense was charged in the third count,' dismissed by the state after the jury was impaneled and sworn; (4) because there was no election in the justice’s court and the district court could not tell upon what offense he was acquitted in the justice’s court. The motion was likewise denied.

These several rulings of the court are assigned as error. The first, second and fourth assignments present but one question, which is, Can a. defendant by his wilful refusal to be present during a part of the progress of the trial, including the return of the verdict, oust the jurisdiction of the court to pronounce a valid judgment upon such verdict, and render judgment so pronounced actually void for want of jurisdiction ? If the justice’s court had jurisdiction to render the judgment, however erroneously it may have proceeded, by the appeal the district court acquired jurisdiction to try the case de novo, as provided by the statute in such cases. Upon the authority of The State v. Adams, 20 Kan. 323-327, we answer the question in the negative. See, also, The State v. Polson, 29 Iowa, 133. There is nothing in the law requiring the state to-elect or designate to the defendant by what proof he expected to sustain the cause of action which is dismissed. Th. refusal of the court to require the state to elect, at the conclusion of its evidence, upon what particular sale it would rely for a conviction upon the remaining count charging an unlawful sale was erroneous and prejudicial to the rights of the defendant. It was his right to know what offense he had to meet with his evidence. The supreme court of this state has settled this matter beyond cavil by several decisions.

The sixth assignment of error cannot be sustained. The supreme court has said upon two occasions that a trial in the district court upon appeal was the same as though the complaint had been .therein originally filed ; that the state was not confined to its election in the inferior court; that the defendant knew this and took his chance when he appealed; and that the state might elect upon any particular sale that it saw fit that supported the charge.

The matters urged upon the motion in arrest of judgment aré not within the statute providing therefor.

For the failure of the court to require the state to elect at the close of its evidence upon what sale it would rely for conviction under the first count, the judgment upon that count will be reversed, and the cause remanded with directions to grant the defendant a new trial thereon. The judgment upon the fifth count will not be disturbed.