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which Zellerbach appended his signature and the words and figures "Nevada City, May 2, 1878," to a writing waiving the benefit of the statute of limitations as to the $40,000 and $10,000 notes above mentioned. Hupp, in his testimony, details the circumstances under which the signature and the words and figures were written by Zellerbach. These facts were pertinent on the issue of the bar of the statute of limitations as to the aforesaid notes, and were parts of the transaction or res gesta. The court committed no error in allowing this testimony.
We find no error in the record, and the judgment and order must be affirmed. Ordered accordingly.
See note to German Savings & Loan. Soc. v. Hutchinson, ante, 634, subds. 3, (1a.)
(34 Kan. 427)
SUPREME COURT OF KANSAS.
STATE V. ROHRER.
Filed December 4, 1885.
1. INTOXICATING LIQUORS-INFORMATION FOR UNLAWFUL SALE-DESCRIPTION OF PLACE OF SALE.
Where the place where intoxicating liquors are unlawfully sold is described. in an information charging an offense under the prohibitory liquor law, as follows: "In the south portion of a certain connected row of frame buildings fronting east on Spruce street, between North Second street and North Third street, in the city of Abilene, in said Dickinson county and state of Kansas," —and no motion is made to quash the information, and the alleged indefiniteness of the description is raised only by objection to the introduction of evidence, and thereupon the court construes the description in the information to refer "to the south building of the connected row of frame buildings fronting east on Spruce street, between North Second street and North Third street, in the city of Abilene," and limits the evidence to the extreme south building of the connected row of frame buildings: held, that the description in the information, as construed and limited, is sufficient.
2. CRIMINAL LAW-NEW TRIAL-NEWLY-DISCOVERED EVIDENCE.
As a general rule, newly-discovered evidence, merely cumulative, is no ground for a new trial. Clark v. Norman, 24 Kan 515.
3. SAME EVIDENCE SHOWING HOSTILITY OF WITNESS.
Newly-discovered evidence of hostility to the defendant in a criminal action, on the part of a witness whose testimony was used against the defendant at the trial, is not a cause for a new trial.
Appeal from Dickinson county.
On May 17, 1883, the county attorney of Dickinson county filed, in the district court of that county, an information, verified upon information and belief, against Georg Rohrer, charging that—
"The defendant on the day of May, A. D., 1883, in the south portion of a certain connected row of frame buildings, fronting east on Spruce street, between North Second street and North Third street, in the city of Abilene, in said county of Dickinson and state of Kansas, then and there being, did then and there unlawfully sell, barter, and give away spirituous, malt, vinous, fermented, and other intoxicating liquors, without taking out and having any permit to sell intoxicating liquors, and contrary to the statutes of the state of Kansas in such case made and provided."
On May 17, 1883, a warrant was issued upon the information, and upon the same day the defendant was arrested. He at once entered into a recognizance, in the sum of $500, for his appearance to the district court, to answer the charge set forth in the information filed against him. Trial commenced May 24, 1883, before the court, with a jury. Albert Wheeler was produced as the first witness on behalf of the state, and after he had been sworn, testified "that he knew the defendant, George Rohrer, and that he had known him for about four years; that he knew where Spruce street, in Abilene, Dickinson county, was. Thereupon, the following proceedings, among others, were had in the court:
The Attorney for Defendant, Capt. McClure. I suppose we may as well make our objection'now. We fobject to the introduction of any evidence under this information against the defendant. The ground of objection is
that the information does not charge any specific and certain offense against the defendant. We have another objection, but we will make them separately, if necessary.
The Court. You claim that this charge is so indefinite that the defendant cannot be convicted upon it?
Capt. McClure. Yes, sir.
The Court. The objection will be overruled.
Capt. McClure. We will save an exception. The other objection we desire to make we think is fatal to this information. We also object to the introduction of any evidence under this information against the defendant, for the reason that no place is designated in the information where the sale was made,--where the alleged sale was made.
The Court. I am inclined to think that the objection is not good, coming at this time, after we have entered upon the testimony; that it is sufficient to state the place is the south building. That is the construction the court will put upon the information,-that it is the extreme south building, because otherwise the description is indefinite. It seems to me these questions ought to be raised upon motions to quash.
Capt. McClure. The court requires the state to show that it is the extreme south building of that row?
The Court. I think that is the construction that the court must put upon that. I don't know anything about the building, but I take it from this that there are three, four, five, or six buildings connected together; and this is intended to designate the building that is furthest south,-that portion or division that is furthest south.
Mr. Mahan. Then the court overrules our objection?
The Court. Yes, sir.
Mr. Mahan. We save an exception.
On May 26, 1883, the jury returned a verdict of guilty against the defendant, and on the same day the defendant filed his motion for a new trial; alleging, among other things, that the verdict was contrary to law; that the verdict was not supported by the evidence; and also newly-discovered evidence. Several affidavits were filed setting forth the newly-discovered evidence. This motion was overruled, as was also a motion in arrest of judgment. The defendant was sentenced to pay a fine of $200, together with the costs, taxed at $75.30, and to be committed to the county jail of Dickinson county until the fine and costs were paid. The defendant brings the case here upon appeal.
S. B. Bradford, Atty. Gen., and Geo. W. Hurd, for appellee.
HORTON, C. J. The appellant (defendant below) asks that this case should be reversed for the following reasons: First, because the charge in the information is not definite and certain; second, because the information was verified by the prosecuting attorney upon information and belief; third, because the evidence does not support the verdict; and, fourth, because of error in the court in overruling the motion for a new trial.
The statute prescribes that in all prosecutions under the prohibitory liquor law, by indictment or otherwise, it shall not be necessary to state the kind of liquor manufactured or sold, but shall be neces
sary to describe the place where sold. It is therefore claimed by the defendant that the information does not state, with any degree of certainty, the place where he sold intoxicating liquors unlawfully. The defendant pleaded not guilty to the information, and made no motion to quash the same. The alleged indefiniteness of the information was raised only by objection to the introduction of evidence. The court construed the description in the information to refer to the south building of a connected row of frame buildings fronting east on Spruce street, between North Second street and North Third street, in the city of Abilene; and the evidence was limited to the extreme south building of this connected row of frame buildings. The description alleged in the information, as construed and limited by the court upon the trial, was sufficient, and the defendant could not have been misled or prejudiced in any manner. Section 293 of the Criminal Code provides: "On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." State v. Sterns, 28 Kan. 154.
Upon the authority of the cases of State v. Blackman, 32 Kan. 615, S. C. 5 Pac. Rep. 173, and State v. Bjorkland, ante, 391, the exception to the information, because it was verified upon information and belief only, is not well taken.
There was abundant evidence before the jury tending to show that from January 1, 1883, to the time of the filing of the information against the defendant, he kept, at the place described in the information, a saloon or club-room, where intoxicating drinks could be obtained; that the room had stained windows, and a bar with bottles, tumblers, etc. Evidently for the purpose of evading the prohibitory law, the saloon or club-room was used as the head-quarters of an association ostensibly called the "Workingmen's Union." The defendant was the manager of the "union," and one George A. Wheeler was the bar-tender in the saloon or club-room, but he was under the control of defendant. Members of the so-called "union" paid two dollars for stock in the association and got checks therefor. The checks were called "stock," and whisky and beer were purchased from the defendant and the bar-tender with these checks. Persons who held these checks were called stockholders in the "union." Three beerchecks were sold for 25 cents, and a member of the "union" could buy checks in this quantity. The defendant had no permit to sell or manufacture intoxicating liquors.
Joshua Taylor, called by the prosecution, testified, on direct examination, as follows:
"Question. Do you know George Rohrer Answer. Yes, sir. Q. Do you know where Spruce street, in Abilene, Dickinson county Kansas, is situated? A. Yes, sir. Q. Do you know where North Second street is, and North Third street? A. I ain't much acquainted with the run of the streets. Q. Do you know where Tom Linson's livery-stable is? A. Yes, sir. Q. Do you know the building on the west side of Spruce street, directly west of that
livery-stable? A. Yes, sir. Q. Do you know a row of connected frame buildings fronting east on Spruce street, west of the livery-stable? A. Yes, sir Q. State whether or not, at any time between the first day of January and the seventeenth day of May of this year, you were in the south room of that row of connected frame buildings? A. Yes, sir; I was there. Q. Did you see the defendant there? A. Yes, sir. Q. What was in the room? A. There was a bar in there, and a stove. Q. What part of the room was the bar? A. On the south side. Q. Did you see the defendant at the bar at any time? A. Yes, sir; I saw him there. Q. What was he doing? A. Well, he was selling checks or tickets, I believe, or something. Q. State whether or not, during that time and at the place, you received anything to drink from the defendant. A. Yes, sir; I guess I did. Q. What? A. I got a glass of whisky from the defendant. Q. Glass of whisky? A. Yes, sir. Q. Whom did you pay for that, if any one? A. Well, I don't now recollect. It was a young man that was in there. I don't know his name. He took the money and got the change, and handed me back my change. Q. Who passed out the whisky? A. Mr. Rohrer. Q. The defendant? A. Yes, sir. Q. About when was that? A. I think it was the last Saturday in March. Q. The last Saturday of what? A. Last Saturday of March? Q. Of March? A. Yes, sir. Q. Where was the person to whom you handed the money,-behind the bar, or in front of it? A. Right at the end of the bar. Q. Whom did you ask for the whisky? A. Mr. Rohrer. Q. Did Mr. Rohrer say anything about how you should pay for it, or whom you should pay for it? A. When I handed the amount of money to him, he got some checks and gave me the checks. Q. Who did he get the checks from? A. He got the checks on the shelf that was lying back of the counter; then he handed the money to Mr. Rohrer, and he handed me back the change. Ile handed me the change, or the money. Q. How much money did you hand him? A. I gave him a half dollar, and he gave me the change. He took out fifteen cents. and gave me thirty-five cents as change, and he handed the check to Mr. Rohrer. Q. Was that before you had asked Mr. Rohrer for the whisky? A. Yes, sir; it was before I drank the whisky. Q. In what county was that? A. Dickinson. Q. State? A. Kansas. Q. How long have you known the defendant? I guess about three or four years, I think; I don't remember exactly."
Upon cross-examination, Taylor testified that Col. Swigart drank with him at the time mentioned in his direct examination; that on the day named he had a difficulty with the defendant; and that in the afternoon of that day the defendant said he would not give him any more to drink. The only evidence introduced upon the defense was the testimony of the defendant. He denied the statements of Mr. Taylor, and said very positively that the latter did not get any whisky or other intoxicating liquor from him, or from anybody else with his authority or consent or knowledge, in March, 1883, or at any other time between January 1, 1883, and May 17, 1883. 17, 1883. The state elected to rely upon the sale of whisky made to Joshua Taylor on the last Saturday of March, 1883.
With the evidence before the jury, we cannot interfere to set the judgment aside upon the ground that the evidence does not support the verdict. "Testimony on paper is not like testimony from the lips; and when twelve jurymen, who hear the living voice, and see the man who utters it, believe one witness and disbelieve others, and the judge, who has the same opportunities of judgment, declares that v.8P,no.11-46