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that on July 26, 1883, Franklin E. Knowles and Thomas J. Garland were the owners and occupiers of a slaughter-house on lot B, in C. R. Godfrey's addition to the city of Wellington, in Sumner county, in this state, where hogs, beeves, and other animals were slaughtered for a long time prior to July 26, 1883, and that they permitted the same to remain unclean, to the annoyance of various parties. First trial had before the justice, commencing August 6, 1883. The jury were unable to agree. Second trial commenced August 9, 1883. On August 10, 1883, the jury returned a verdict of guilty, and the court sentenced the defendants to pay a fine of $50 and all costs of prosecution, and to be committed to the jail of Sumner county until the fine and costs were paid. The defendants thereupon appealed to the district court of Sumner county. On September 7, 1883, with leave of the court, an amended complaint was filed, in the words and figures following, to-wit:
"State of Kansas, Sumner county,-ss.: J. P. Mayfield, being duly sworn, on oath says: That on the twenty-sixth day of July, 1883, in the county of Sumner and state of Kansas, Franklin E. Knowles and Thomas J. Garland were then and there the owners and occupiers of out-lot B, in C. R. Godfrey's addition to the city of Wellington, in Sumner county, in the state of Kansas, (except that portion of said out-lot B sold by C. R. Godfrey and wife to the Kansas City, Lawrence & Southern Railroad, and described as follows, towit: Commencing at the south-west corner of said out-lot B; running thence east 200 feet; thence north 150 feet; thence west 200 feet; thence south 150 feet, to place of beginning,) and were then and there the owners and occupiers of a slaughter-house on the above-described premises occupied by them as aforesaid; that hogs, beeves, and other animals were then and there, and for a long time prior to said twenty-sixth day of July, 1882, had been, slaughtered on said premises and in said slaughter-house by the said Franklin E. Knowles and Thomas J. Garland, and that the said Franklin E. Knowles and Thomas J. Garland, while so owning and occupying said slaughter-house and said premises, on said twenty-sixth day of July, 1883, did then and there unlawfully permit the same to remain unclean, to the annoyance of J. P. Mayfield, J. A. Shafer, W. F. Travis, F. E. Phelps, A. J. Jones, G. F. Hargus, and H. A. Williams, citizens of the said county of Sumner and state of Kansas. J. P. MAYFIELD.
"Subscribed and sworn to before me this seventh day of September, A. D. 1883. P. V. C. Pool, Clerk Dist. Court." [Seal.]
Trial had at the September term of court for 1883. The defendants waived arraignment, and pleaded not guilty. Both parties thereupon announced themselves ready for trial, and a jury was duly impaneled. The jury, being unable to agree, were discharged by the court, with the consent of the parties, and the case was continued until the next term of court. The case was again called for trial at the December term of court for 1883. The defendants appeared in person, as also by their attorneys, and withdrew their plea of not guilty, and entered a plea of guilty to the charge contained in the amended complaint. Thereupon the defendants filed a motion in arrest of judgment, upon the ground that the facts stated in the amended complaint did not constitute a public offense. The court sustained
the motion, the state excepting. The defendants were then discharged. The state excepted, and brings the case here by appeal. On July 16, 1883, J. A. Shafer filed his complaint in writing before a justice of the peace of Sumner county, in the following words and figures, to-wit:
"State of Kansas, Sumner County,-ss.: John A. Shafer, being duly sworn, on oath says: That on the sixteenth day of July, A. D. 1883, in the county of Sumner and state of Kansas, F. E. Knowles and Thomas J. Garland did then and there unlawfully own and occupy a slaughter-house, and permit the same to remain unclean, to the annoyance of the said John A. Shafer and George White, C. F. Vaughn, Walter Morehart, Jack Trotter, Philip Bechler, James Beard, Jack Boyd, W. F. Travis, and F. E. Phelps, all of said parties being then and there citizens of the said county of Sumner and state of Kansas. JOHN A. SHAFER.
"Subscribed and sworn to before me this sixteenth day of July A. D. 1883. "D. N. CALDWELL, Justice of the Peace."
Trial had July 7, 1883, before the justice, without a jury. The defendants were found guilty, and sentenced to pay $50, together with all costs, taxed at $28.95, and to be committed to the jail of Sumner county until the fine and costs were paid. Thereupon the defendants. appealed to the district court of Sumner county. Trial had at the September term of court for 1883. The defendants appeared in person, as also by their attorneys, and entered a plea of guilty to the charge contained in the complaint; and thereupon the defendants filed a motion in arrest of judgment, upon the ground that the facts stated in the complaint did not constitute a public offense. On December 28, 1883, the court sustained the motion, the state excepting. Thereupon the defendants were discharged. The state excepted and brings the case here by appeal.
J. T. Herrick, for appellant.
W. A. McDonald and Charles Willsie, for appellees.
HORTON, C. J. These prosecutions were brought under section 317, c. 31, Comp. Laws 1879, which reads as follows:
"If any owner or owners, occupier or occupiers, of any slaughter-house, or of any premises where hogs, beeves, or other animals are slaughtered, shall permit the same to remain unclean, to the annoyance of the citizens of this state, or any of them, every person so offending shall be fined for every such offense any sum not less than five nor more than fifty dollars; and if said nuisance be not removed within five days thereafter, it shall be deemed a second offense against the provisions of this act; and every like neglect, of each succeeding five days thereafter, shall be considered an additional offense against the provisions of this act."
To the complaints the defendants entered a plea of guilty, and then filed their motions in arrest of judgment, upon the ground that the facts stated in the complaints do not constitute a public offense. is the contention on the part of counsel for the appellees (defendants below) that the statute does not prescribe or imply the form of the complaints or informations, and therefore that, as the complaints or informations are in the language of the statutes only, they are fatally
defective. Counsel cite the precedent stated by Kelly in his Criminal Law and Practice, 501, which is as follows, omitting caption:
"Being then and there the owner and occupier of a certain slaughter-house there situate, wherein divers hogs, beeves, and other animals were and are slaughtered, did then and there unlawfully permit said slaughter-house to remain unclean between the first day of April and the first day of October, to-wit, from the first day of June until the first day of September, in the year aforesaid, so that the atmosphere for the distance of one mile around said slaughter-house was thereby rendered noxious, disagreeable, and unhealthy, to the great annoyance of the citizens of this state, against," etc.
He also refers to the following precedents: Warren, Crim. Law, 394; Bickn. Crim. Law, 399; Archib. Crim. Pr. & Pleading. Counsel, however, omits one important matter in his argument. No motions were made in these cases under consideration, in the district court, to quash or amend the complaints. So far as criminal pleading is concerned, few errors remain which motions in arrest of judgment can reach. Technical errors in a pleading cannot be considered upon a motion in arrest of judgment after a verdict or plea of guilty. Therefore many errors as to the form of the complaint or information, which might have been taken advantage of at a previous suggestion, are not sufficient cause, after a verdict or plea of guilty, to arrest judgment. Section 277 of the Criminal Code expressly provides:
"A motion in arrest of judgment is an application, on the part of the defendant, that no judgment be rendered on a verdict of guilty or finding of the court, and may be granted by the court for either of the following causes: First, that the grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; second, that the facts stated do not constitute a public offense."
Where an averment which is necessary to support a particular part of a complaint or information filed in a criminal case is imperfectly stated, or is stated in very general terms, a verdict or plea of guilty cures the defective averment, although such averment might have been bad on demurrer or motion to quash. Whart. Crim. Plead. & Prac. (8th Ed.) §§ 760–762.
In the cases at bar, the pleader ought to have followed the precedents referred to by counsel; but we think, upon a motion in arrest of judgment, the complaints or informations are sufficient. We think the offenses charged therein are stated with such a degree of certainty that the district court may pronounce judgment upon the pleas of guilty, according to the right of the case. Section 109, Crim. Code. The statute sets out in some particulars the facts and acts in which the offenses charged consist, but "the annoyance" is charged in general terms, instead of being set forth in detail, or by specific allegations of facts. In this regard, the averments as to "the annoyance" are imperfectly stated, but the defects of the complaint have been cured by the pleas of guilty. When the defendants pleaded guilty, they admitted that on July 26, 1883, they were the owners and occu
piers of the slaughter-house described in the complaints; that hogs, beeves, and other animals had been slaughtered prior to said date by them in their slaughter-house; and that upon said date they unlawfully permitted their slaughter-house, and the premises upon which it was situate, to remain unclean. They further admitted that such uncleanliness was to the annoyance of several citizens of Sumner county, in this state. We think that the pleas of guilty went so far as to admit that the citizens named in the complaints were persons of ordinary feelings or perceptions, and that the uncleanliness alleged was not merely annoying or offensive to them, but that it was reasonably so; therefore that the annoyance was improper, wrongful, and unlawful, and such an annoyance as the law would take cognizance of. The judgments of the district court will be reversed, and the cases remanded, with directions to overrule the motions in arrest, and to enter judgments upon the pleas of guilty. (All the justices concurring.)
(34 Kan, 434)
CITY OF KANSAS v. COLLINS.
Filed December 4, 1885.
1. HAWKERS AND PEDDLERS-"COMMERCIAL TRAVELER."
Where an agent, such as is usually denominated a "drummer" or "commercial traveler," simply exhibits samples of goods kept for sale by his principal, and takes orders from purchasers for such goods, which goods are afterwards to be delivered by the principal to the purchasers, and payment for the goods is to be made by the purchasers to the principal on such delivery, such agent is neither a peddler nor a mercnant.
2 SAME-SINGLE SALE-SAMPLES.
Nor will a single sale and delivery of goods by such agent, or by any other person, out of the samples exhibited, or out of any other lot of goods, constitute such agent or other person a peddler or a merchant.
3. SAME-LIABILITY TO LICENSE TAX.
Nor does there seem to be any authority under the statutes for cities of the second class to levy license taxes upon drummers or commercial travelers.
Appeal from Wyandotte county.
Jenkins, Clarke & Thomas, for appellant.
W. S. Carroll, for appellee.
VALENTINE, J. On August 18, 1884, the following complaint, duly sworn to, was filed in the office of the police judge of Kansas City, Kansas, to-wit:
"* * * John T. Collins, at and in the city of Kansas, county of Wyandotte and state of Kansas, and on the eighteenth day of August, A. D. 1881, did unlawfully carry on the business of a peddler of goods, wares, and merchandise, and did then and there sell, and offer for sale, certain goods, wares, and merchandise, and did take orders, and offer to take orders, for the delivery at a future time of certain goods, wares, and merchandise, without having any license from the city of Kansas so to do, in violation of ordinances of said city of Kansas."
Upon this complaint the defendant was arrested, tried, found guilty, and sentenced, and afterwards he appealed to the district court. In v.8P,no.13-55
the district court he was again tried and convicted, and was sentenced to pay a fine of $25, and the costs of suit, and from this sentence he now appeals to this court. That portion of the ordinance under which the foregoing complaint was drawn reads as follows:
"A peddler, or any person, who shall sell, or offer for sale, deliver, or offer to deliver, or take orders for the future delivery at any time, any goods, wares, and merchandise of any kind, including cider, soda-water, mineral water, spruce or birch beer, within the city, shall be required to take out a license, and the charge shall be, for six months, $10.”
It was also provided in the ordinance that a violation of any provision of the same should be deemed a misdemeanor, and the punishment for such misdemeanor should be a fine not exceeding $100, or imprisonment not exceeding three months, or both. The statute under which the foregoing ordinance was adopted provides, among other things, that cities of the second class, which included the said city of Kansas, shall have power to levy and collect license taxes on hawkers, peddlers, merchants of all kinds, and others. Comp. Laws
1879, c. 19, par. 786.
The facts of this case are substantially as follows: Wm. A. Wilson & Co., of Kansas City, Missouri, are, and were at the time of the commission of the alleged offense, wholesale dealers in cigars, tea, and spices. The defendant, John T. Collins, was their traveling agent, who, with a team and wagon in which he carried samples, visited the various places of business of the several merchants of Kansas City, Kansas, who dealt in the lines of goods kept and sold by Wm. A. Wilson & Co., and solicited orders. When the merchants of Kansas City, Kansas, gave orders for goods, Collins delivered the orders to Wm. A. Wilson & Co., in Kansas City, Missouri, who, if they approved them, packed the goods at their own place of business in Kansas City, Missouri, and sent them to the purchasers in Kansas City, Kansas, where they were delivered and paid for. In just what manner they were delivered, by what agent they were delivered, and to whom the payments therefor were made when delivered, the evidence does not show; but it does show, we think, that the goods were not delivered by the defendant, John T. Collins, nor were the payments for the goods made to him. The evidence also tends to show that the defendant on one occasion made a sale of and delivered a box of cigars to a merchant in Kansas City, Kansas, from the samples which he carried with him; but a sale of that kind was not authorized by Wm. A. Wilson & Co.
It is claimed by the prosecution in this case that the defendant, Collins, was a peddler and also a merchant; and that if he was either a peddler or a merchant, or both, he was rightfully convicted, and the judgment of the court below should be affirmed. But, on the other hand, it seems to be admitted by the prosecution that if the defendant was neither a peddler nor a merchant, the conviction and sentence were and are erroneous, and the judgment of the court be