State v. Durein

The opinion of the court was delivered by

Burch, J. :

On June 28, 1902, Miss Blanche Boies, Mrs. Henry Howard and others of a praying-band, five in number, went to certain rooms in a brick building at No. 402 Quincy street, in the city of Topeka, *3 and found there a flourishing beer-saloon. In the place were a bar and shelves and bottles and glasses and tables. Men were sitting at the tables playing-cards, and a dozen others were at the bar drinking. A man behind the bar was handing out beer to them, which they drank and paid for, one of the women seeing the money pass. One of the women asked the bartender if that was Mr. Fritz Durein’s saloon, and he said it was. She asked for the proprietor, and he said he was Fritz Durein. In the course of a conversation with him he told the women he did not think it wrong to keep a saloon ; that it was not against his religion, and that he intended to keep right on running a saloon and selling beer. He drank a glass of it himself and asked the women to have some.

On January 10, 1903, an assistant attorney-general of the state of Kansas for Shawnee county filed an information against this Fritz Durein, charging him with selling liquor without a permit and with maintaining a nuisance at the place described. A warrant was issued at once. Within twenty minutes after receiving the writ the sheriff of Shawnee county and two of his deputies were at the place, and found it to contain a bar and shelves and glasses and tables,and an ice-box, bottles and kegs of beer, bottles of whisky, and a miscellaneous lot of bottles and various kinds of liquor, some labeled beer, and some hop-tea, and some wine. Ten or twelve persons were in the room, some sitting at tables and some standing at the bar drinking. Durein was behind the bar setting out beer. Upon a trial the officers and the members of the praying-band already named related the foregoing facts, and a verdict was returned against Durein, finding him-guilty of the offenses charged. Judgment upon the verdict was duly rendered, and in an appeal to this court numerous errors are assigned.

*4 The count of the information under which the appellant was convicted of an unlawful sale of intoxicating liquor charged that he made such sale without first taking out and having from the probate judge of Shawnee county a permit for that purpose. It is insisted that every word of that count of the information might be true and the appellant be innocent of any offense, for, it is said, although he had no permit he had a lawful right to sell if he was a registered pharmacist or assistant pharmacist in the employ of one having a permit. Hence it is claimed the count should have been quashed for want of an allegation negativing the bearing of any character by the appellant which might afford him immunity from prosecution. No such allegation was necessary. The statute recognizes no independent right in a druggist’s clerk who is a registered pharmacist or assistant pharmacist to make sales of intoxicating liquors. Sales made by such a clerk are regarded as made by the druggist himself. The clerk’s identity is merged in that of his employer; and since he has no distinct character of his own, as a dispenser of liquor, a complaint for selling without a permit need not negative such character in order to charge a public offense.

In response to a motion requiring the state to elect upon what transaction it would rely to convict the appellant of an unlawful sale of intoxicating liquors it elected to rely upon an alleged sale to parties whose names were unknown, made on the 28th day of June, 1902. The names of the witnesses to such sale were not stated in making the election, and no further attempt was made to individualize any particular sale. The court instructed the jury that the state relied upon a sale of intoxicating liquor by the appellant to parties whose names were unknown, as testified to by the witnesses, Mrs. Howard and Miss Boies, such sale *5 having been made on June 28, 1902. It is claimed the election was insufficient, and that a conviction was impossible under the evidence of the witnesses named.

No witnesses gave evidence of a sale on June 28, 1902, except those named in the instruction, and their testimony related to the same transaction. The mere fact that a dozen men were drinking at once, or during a given period of observation, and that the witnesses were unable to identify the particular individual or individuals who furnished the money observed to pass, did not militate against the fact that a sale was made. A liquor-seller cannot escape punishment because sales are made to men in such groups, or in such a manner, that witnesses cannot separately discriminate them. If all the elements of a sale appear in evidence, it is sufficient to support a verdict of guilty, even though a keener scrutiny might have detected that several sales were in fact made. The inability of witnesses fully to describe the transaction ultimately advantages the accused, because he is protected against any further prosecution on account of anything which the transaction in fact included. The nuisance sections of the statute do not cover such cases, for sales of the character described may be made by one not the keeper of the place, and if a keeper should also sell he is subject to the penalties prescribed for both offenses. Therefore the election was sufficient, and the verdict was sufficiently supported by the evidence.

A witness testified to sales of intoxicating liquor by the appellant, but before his examination was concluded it was discovered that such sales were made long after the information had been filed. The record then discloses the following :

“The Court: Any testimony concerning anything *6 that may have occurred since this information was filed would not be competent.

“Mr. Redden: The information was filed January 10, 1903.

“The Court: Then the testimony of this witness as to last spring is withdrawn.

“Q. Were you not in there during the spring or summer of 1902? A. I don’t think I was.

“Q. Were you not in there about June, 1902 ? A. I don’t remember that.

“Q. And thereafter ? A. I don’t remember being in there, as I said.

“Q,. That is, until in the spring of 1903 ? A. Yes, sir.

“The Court: This evidence is not competent in this case. Anything that occurred since the information was filed cannot be considered against the defendant.”

Appellant insists that the remarks of the court were addressed to counsel only, and not to the jury. The record cannot be interpreted to show error, if it be susceptible of a reasonable interpretation to the contrary. Plainly the statements that the testimony of the witness was withdrawn and that anything occurring since the information was filed could not be considered might have been directed to the jury, and, if so, they were sufficient to take the objectionable evidence out of the case. That the court so intended is apparent from its conduct in overruling the motion for a new trial, and the appellant does not show the contrary to be.true.

The nuisance count of the information under which appellant was convicted charged that he maintained a place where intoxicating liquors were sold, and were kept for sale, and where persons resorted to drink intoxicating liquors, contrary to law, on March 2, 1901, and divers other days and times between that day and *7 the filing of the information. The court instructed the jury as follows :

“The court has permitted the officers who served the warrant in this case to testify as to what they saw and found at the place described in the information at the time they went to the place for the purpose of serving the warrant. This testimony is competent to be considered by the jury in passing upon the question as to whether the place described in the information was a common nuisance at the time charged. But this testimony is not competent, and cannot be considered by you in your deliberations in the jury-room, for the purpose of determining whether the defendant was the keeper of this place at the time charged. On the question of whether the place described in the complaint was a common nuisance at the time therein charged, this testimony is competent to be considered, together with all the other facts and circumstances proven, for the purpose of determining whether the place described in the complaint at the time charged was a common nuisance by reason of being a place where intoxicating liquors were kept for sale and sold in violation of law.”

Appellant argues that a retrospective inference from the condition of the place on January 10, 1903, to the effect that a nuisance existed prior to that time, would be illegitimate, and that after the court had instructed the jury there was left neither evidence nor presumption that he was a keeper at any other time than on June 28, 1902.

In the case of Topeka v. Chesney, 66 Kan. 480, 71 Pac. 843, the sole question for consideration was the relation of a man, charged as keeper, to a liquor nuisance at a particular place — a relation which in and of itself is not necessarily or essentially a continuing or enduring one. The question was sharply *8 raised by an instruction, and its decision was accurately expressed in the syllabus, which reads :

“In a prosecution for keeping a place where intoxicating liquors were sold in violation of a city ordinance, evidence relating to the condition of the place five days after the date of the offense, and three days after the filing of the complaint, was inadmissible to prove that the defendant was the keeper of the place.”

The opinion related solely to the point under consideration, and was based upon two grounds — one of simple logic, forbidding that mere proof of facts showing a place to be a nuisance will also identify its keeper ; and another of law, founded upon sound reason, forbidding the indulgence of retrospective inferences. That retrospective inferences may be indulged in some cases was expressly recognized, but some confusion may have resulted from the citation of the peremptory rule given in volume 22 of the second edition of the American and English Encyclopedia of .Law, at page 1239. The paragraph from the encyclopedia is in effect an elaboration of rule 37 in Lawson on Presumptive Evidence, which states that “a presumption is not retrospective.” Professor Lawson’s statement, like that of the encyclopedia, is based upon the decisions of reputable courts, and has been expressly approved in Jarvis v. Vanderford, 116 N. C. 147, 21 S. E. 302, and in Martyn v. Curtis, 67 Vt. 263, 31 Atl. 296. In the first case it was decided that because certain persons held official positions at a given date it could not be inferred they were such officers some years before, and in the second it was held that the use of land as a pasture at a particular time did not warrant an inference that it had previously been so used. The same *9 rule is given in section 110 of volume 1, Elliott on Evidence (Sept. 1, 1904), and supported by abundant authority. Likewise, in the case of Barnes v. The Commonwealth, 2 Dana (Ky.) 388, it was held that, upon the trial of an indictment for keeping a tippling-house in March, proof of keeping such house in the following August was inadmissible, wdiich could not have been true if a revertive inference of continuity had been allowable.

These authorities are all sound in principle, but some discrimination must be used in the application of general rules to particular states of fact. The nature of the subject is of importance. From their present condition and appearance it might be reasonably inferred that the pyramids of Egypt have endured without essential modification for a long period of time. No such inference is possible concerning frost films on the window-pane. The quality of substantially changeless continuity inheres in the one, and not in the other. Between such classes of objects, and separated from one another by infinitesimally slight signs of difference, lies an infinity of states, conditions, and relations, complicated by the interposition of human activities. Of some of these persistence may not be predicable at all, and of some of them such an affirmation may be made with reasonable certainty, within wider or narrower time limits. When one of these matters is offered in court as an evidentiary fact it may be that its admissibility cannot be determined by any fixed standard of law. Thus, in negligence cases, the condition of a place, or of an appliance, shortly before and shortly after an accident, when there is nothing to indicate a change, may be relevant, when the lapse of a slightly greater interval, or a very little modification of circumstance, *10 would destroy its value altogether. Therefore very frequently something must be left to the cautious exercise of the court’s best judgment upon the peculiar facts of the particular case. Sometimes, in criminal cases, the presumption of continuity will run counter to the presumption of innocence, in which event it must yield as the weaker of the two. (22 A. & E. Encycl. of L., 2d ed., 1237; Laws. Presump. Ev., rule 38.)

In order to be such a nuisance must exist for some length of time. The coordination of its elements must have an appreciable duration, and, in ordinary cases, continuity for a period considerably beyond the limits of the de minibus rule may be safely asserted.

“ If attention is directed to any point of time during the keeping, there is a probability, from the very fact of keeping then, that the s'ame condition has existed from some previous time, and will continue for some time into the future. And so, as to offenses which are in their nature continuing, evidence has often been received of a condition a little before or a little after the time within which the offense must be proved. And this rule has been repeatedly applied to prosecutions for unlawfully keeping intoxicating liquor with intent to sell it. The introduction of this kind of evidence should be carefully guarded, and the testimony should be confined to a time very near the time in question, or should be connected with it by evidence showing a continuance of the same condition through, the entire intervening period.” (Commonwealth v. Finnerty, 148 Mass. 162, 166, 19 N. E. 215.)

In the case just cited the evidence showed practically a continuing state of affairs for some thi’ee weeks following the date to which the principal evidence related.

In the case of Commonwealth v. Powers, 123 Mass. 244, the rule was extended to include the condition of *11 a room where liquors, it was alleged, had been kept, as to appointments and fixtures, at eight o’clock of the morning following the day of the offense. In some cases more radical decisions have been made, but without discussion of the principle involved.

In the case now under consideration appellant might have been convicted of maintaining, a nuisance on the day the information was filed. Within a few minutes after the action was commenced he was found apparently in charge of a well-appointed saloon, personally dispensing beer. The evidence disclosing this fact should have gone to the jury without limitation. However, the fact that the court attempted to impose restrictions upon its. probatory force was to the advantage of the appellant and he cannot complain.

The simple fact of the existence of a nuisance at the place in question on Jauuary 10, 1903, after the information had been filed, or that fact combined with the fact that appellant was its keeper at that time, could not be related to the existence or keeping of a nuisance at the same place in June of the preceding year by mere force of a retrospective inference. However, on June 28,1902, appellant told his visitors that he was the proprietor of the saloon then running at the place in controversy, and assured them that he intended to keep right on running a saloon and selling beer. In the light of this declaration, the fact that in January following the same saloon' was running in apparently the same way, and that appellant was still there setting out beer, took on an aspect which the jury might consider without violating any of the rules of law or of logic. Therefore, under the evidence, the instruction as a whole was not prejudicial to the appellant.

The constitutionality of the law regulating the sale *12 of intoxicating liquor in this state is assailed, and the argument is made that the sale of liquors for medical, mechanical and scientific purposes is a lawful and virtuous business, necessary for the welfare of the community ; that permits to carry on such business must, therefore, be obtainable as a matter of right; that the statute gives to probate judges an arbitrary and unrestrained authority to refuse permits for such purposes; that the vesting of such power in probate judges renders the statute void, and hence that no one can be punished for selling liquors without a permit. The opinion of-the supreme court of the United States in the case of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, effectually disposes of this argument. Mr. Justice Harlan there shows, both by reason and upon authority, that the right to manufacture, sell and use articles of trade is conditioned upon the fact that such conduct does not deleteriously affect the rights of the public; that if any business becomes prejudicial to the welfare of the community, society has the right to. protect itself against such injurious consequences ; that the legislature of the state has the right to determine what measures are appropriate or needful for the protection of the public morals, health, and safety, and unless a statute has no real or substantial relation to those objects the courts cannot interfere. It is then shown that if, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker’s own use as a beverage would tend to cripple or defeat the effort to guard the community against the evils attending the excessive use of such liquors, prohibition may follow. So, if the manufacture and sale of liquors for medical, mechanical and scientific purposes merely opens the door to the train of evils following upon the general use of *13 intoxicants, they may be prohibited; and since they may be prohibited, they may be regulated in the manner prescribed by the statutes of this state.

(80 Pac. 987.) SYLLABUS BY THE COURT. 1. Intoxicating Liquors — Legislature May Absolutely Prohibit Manufacture or Sale. Whenever, in its judgment, it is necessary for the protection of the health, morals, peace and safety of the people the legislature may prohibit the manufacture and sale of intoxicating liquors in this state for medical, scientific and mechanical purposes; and in the interest of the public welfare it may impose any conditions upon the conduct of those industries short of prohibition which it may deem proper. 2. -Right to Sell Not a Privilege or Immunity of Citizenship. The right to sell intoxicating liquors is not one of the privileges or immunities attaching to citizenship in the United States. 3. - State Constitution Affects Power of Legislature to Tolerate, Not to Restrain, Liquor Traffic. The amendment to the state constitution prohibiting the manufacture and sale of intoxicating liquors except for medical, scientific and mechanical purposes affected the power of the legislature to tolerate only, and did not abridge its power further to restrain or prohibit, the liquor traffic.

*13 At the hearing of the motion for a new trial appellant made a showing to the effect that he had once suffered a conviction of the offenses charged in the information. His attorneys were ignorant of the fact until after the verdict had been returned, and appellant claimed he did not know of the importance of the former conviction until the trial had been concluded. It is conceded that the former conviction was not presented at the proper time, or in the proper manner, to obtain, as a matter of right, the protection it might have afforded, and such is the law; but it is argued that the district court might have used it as a basis of an exercise of its discretionary power to grant a new trial. Conceding this to be true, it was not an abuse of discretion to refuse a new trial.

The judgment of the district court is affirmed.

All the Justices concurring.