State v. Gluck

Opinion by Simpson, C.: This was a prosecution under § 9 of the act of March 8, 1887, chapter 165, now ¶ 2532, General Statutes of 1889. The appellant was charged with having violated this section of the statutes, as mayor of Dodge City, in Ford county. He was convicted, and fined $100, and his office of mayor declared forfeited. Said section provides that— “It shall be the duty of all sheriffs, deputy sheriffs, constables, mayors, marshals, police judges and police officers of any city or town, having notice or knowledge of any violation of the provisions of this act, to notify the county attorney of the fact of such violation, and to furnish him the names of any witnesses within his knowledge by whom such violation can be proven. If any such officer shall fail to comply with the provisions of this section, he shall, upon conviction, be fined in any sum not less than $100 nor more than $500; and such conviction shall be a forfeiture of the office held by such person, and the court before whom such conviction is had shall, in addition to the imposition of the fine aforesaid, order and adjudge the forfeiture of his said-office. For a failure or neglect of official duty in the enforcement of this act, any of the city or county officers herein referred to may be removed by civil action.” The information charged that — “On the 7th day of April, 1891, in said county of Ford and state of Kansas, one Adolph Gluck was duly elected mayor of the city of Dodge City, Kas., and thereafter said Adolph Gluck duly qualified as required by law and entered upon the discharge of the duties of mayor of said city — said city of Dodge City then and there being a city of the second class, [539] duly organized and incorporated under the laws of Kansas; that on the 20th day of June, 1891, the said Adolph Gluck was, and ever since has been, the duly-acting and qualified mayor of Dodge City, Kas.; that on or about the 27th day of June, 1891, in the county of Ford and state of Kansas, said Adolph Gluck became possessed of actual notice and knowledge that one Chas. Heinz and one Chas. Wright were then and there keeping and maintaining and operating certain rooms on the second floor of the brick building located on the east 19 feet of lot 34 and the east 6 feet of lot 32, Front street, Dodge City, Ford county, Kansas, (the property of said Adolph Gluck,) as a place where intoxicating liquor was sold, bartered and given away contrary to law, and as a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and as a place where intoxicating liquors were kept for sale, barter and delivery ill violation of law; that said A. Gluck then and there and afterwards became possessed of actual knowledge of the persons by whom said described violation of law could be proven; that said Adolph Gluck continued to receive, and now has, actual notice and knowledge of said violation of law; that said Adolph Gluck has, in said county and state, unlawfully, wholly and entirely failed and neglected to notify the county attorney of Ford county of said described violation of law, or to furnish said county attorney with the names of persons by whom said violation could be proven.” The contention of the plaintiff in error is, that the information is not good, because, first, it does not charge that there was a violation of law, stating with reasonable certainty the facts necessary to show a violation; second, it does not show that the accused had notice or knowledge of the facts constituting such violation; third, it does not show who was county attorney at the time these alleged violations occurred. None of these contentions are controlling. It was not necessary to allege the particular person who was acting as county attorney. It is not analogous to an action for obstructing legal process, or resisting an officer. In such a case the official capacity of the officer and the identity of his person must be alleged and proven; here it does not make any difference who was county attorney, or whether he was a de jure or defacto officer. “County attorney” is the designation of [540] an office, and it is immaterial what person was discharging the duties of that office. Neither is the information bad for duplicity, conceding that more than one offense is set forth in the information. We think the case of The State v. Schweiter, 27 Kas. 499, is conclusive. In a word, all that is required in an information under this .section of the statute is, to aver the official capacity of the defendant; the fact that he has knowledge or notice of the violation of the law, and that he failed to notify the county attorney of such violation. As-to the defendant, the offense must be fully pleaded, but it is not necessary to technically plead the violations of the law that come to the knowledge or notice of the accused. We-find no error in the action of the trial court overruling the various motions directed against the information. We cannot consider the various assignments of error with respect to the instructions, because they are not embodied in the bill of exceptions. It is true that there is a reference to them in the bill of excepttions, but it recites the “ foregoing,” and does not name the instructions as an exhibit, they being-almost the last thing in the record, and coming long after, not only the formal part of the bill of exceptions, but the bill itself, as signed by the trial judge. (The State v. Smith, 38 Kas. 194.) During the time the jury was deliberating, the trial judge-twice visited the jury-room and held conversations with the jury, neither the defendant or his counsel being present. This conduct of the trial court is made a cause for a new trial. There is no dispute about the facts of these visits, but the evidence of the jurors, as well as that of the trial judge, shows-that the conversations had with the jury were to the effect that they must act according to the evidence, and take the law as given them by the instructions. We impute nothing wrong to the trial judge in this particular instance, and it is plain that he said nothing tending to prejudice the jury against the-defendant; and yet such visits ought not to be permitted under any circumstances; but while the court criticises the practice, and in a proper case would hold it, if accompanied by any [541] evidence tending to show a prejudicial effect, a sufficient cause for reversal, there is nothing to show in this record that any such result was either anticipated or attempted in this particular case. We recommend that the judgment of conviction be affirmed. By the Court: It is so ordered. All the Justices concurring.