The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1884-05-29
KAHN vs. STATE
sJiiabu. Of lhs C,url II App'al', d.
Clsion or
These Celebrated Ca,es-rho ruli and
Official Text,
D,el Ion Of WY Gsn,rAl Io,errsi

The case Of ths STATE n Te1ssys W. J.,
Ksir. nppsslsd ffom u lltf, ard NJ 'oh has
rsiurI prominence a. one at ne Celebrate
+1aultllug CASE 10 vas decided In toe conEi
oil Appeals THE m0Tnlug tdviFle 10 tue ap-
peilshi, Following is judge Hurts opiH'
loo in the ossi;
Inc Information In this case allsged ihh,
appellant kain kept aud exhiellfd, and
was interested Ia keeping AND exhibluns q
lenn table OF toe an DAY OF Ssp'emosi' A.
Al. 1873
no guilty. form Q uJ.yNtiln A. taa sea-! .
or's eouTI Of the city OF Dallas. lofIAsr con-
vie,ion and aeqai'tsl in the county oout!
aud privilege from Prosecution ny reason OF
having been summoned ana testii' ihB ~
errinin cases before tle mayors eo1Es, IA
which the parties prosecuted we're charged
with the same otfense contained IN this Ia
foImauon,
The ey dence IL tuppor, OF appellants
pleas OF former conviction and aequltsi
falling TO show that the oliensss We the
same IN point oi "idCn,i y and Transaction v
n Is absolutely necessary 10 nssume anu
sustain the proportion, that the oilsnses
ip gh,ch appellant haa Torn erly been con-
Noied or acquitted were IN them nature
contiuuoui, hnd the learned counsel, peT.
etlylng this NJ csssity, Ia his very aoe and
exhaustive hriei, st-t-s tho following rs his
first pruposti "kerpipg aud exhiblllne
agsmins table, or bank are CONTINUOUS OIL
lenses"
Vhs question, theroior', is'hii; Are these
0lfsl SO, continuous Ia tLeir Character III
they are, the pleas OF former conviction aud
aciuit,ni Can aud should nave prevailed.
Thee, We think. nfe cDrrsct PROF fillOht:
First-An OF Sc 10 indiViriols.
Ssonnd-lt may consist OF sinsle scl or
series OF acts.
Thlrd-It mar he instantaneous In lite oon.
. al lllgI.al
OF time. ltis, nevertheless, but one onense
A brief analysts OF the above propnsi-
lions will lead Is u an easy solution oil me
msiu question. which l., are the Oiisnoes OF
which defendant vas 90 ,Sioitdor acquitted
oontlnuou
able. still II Il consists OF single act, or
series OF ectF, ana % copsumS'e ~ an inter
val ci time t,uch rn interval oil tune ns Is
meant py certain authors ana VI opinions
OF supreme courit) Is no. required, / Is not
continuous IN ats nature. ,
We deem IL unuC cesssry % enter, ~ tnia
point, upon an explain Iion OF wbet 10
meant by interval ., time" cont0iued ~
the third proposition aJova. F1r II VIII
surely not he con'e16ed that M Huelsr
consisting Of but single act is continuous
in It's nature.
or hat ac.. or acts, does the if'rsr COZ
rist Of watch the defendant stands CHARGE!
OF keeping ant exhibiting keno table.
Now, while Il may be tue that keeping
table is continuous in its charac er, Vsrv
evidently, without aid from the C0re, eI-
hi5iling is y single act and 10 mo- continii'
Gus. But We are not leit 10 speculate, or
resson upon this subject, 1t being plbc' q
yond csvil,by the Code itself. Article 1858
determines III manner not 70 be doubted
whether exhibit Is a continuOu', or single
&C.; II speaks to this court in mis- unmis-
taxable language: THE word exhibit Is
intended to signify the act OF displaying the
Ds. il, or game Tor the purpose OF betting"
Exhibiting Ia made the act and
this act is made penal, and for this
act defendant was convicted, the evidence
showing him guilty OF the same. Now. II
defendant. on the An day Of September.
1888, exhibited keno table Tor the pur.
pose o, gaming" he violated the law Oh
TO demand the penalty. If he exhibited the
table for this purpose, be committed an act
forbidden by positive law, for which was
annexed on conviction, prescribed punish
ment. The ttate, however, neither In rea'
son, justice or 'aw. could demand but one
conviction and punishment.
Blu, be pleads that no has bsen convicted,
or acquitted OF this ofiense. Has this plea
been sustained Dy him in the trial?
Upon whom is the burden
o, proof, snG what must he
prove to make gooi these pleas, or either
ui these piess?
Eirsl-The burden Is upon defendant.
SAcond--He must prove the rec RI
Third-PrOvP, orally, or ctf.r"lss, thc
pvprmrr' NJ identity OF deteniE-t and den
tity OF offense.
Prove IDENTITY Of cfr,gse." VIII prooi
of identity IN the name Of 90 ctieu7F, ~
identity In the e,em,r 90 tha OIL inse'.
discharge The burde,? urq '@nneby nel.
Ja.G 81 th,s point II oscoT 'A Of ln uts'
inheritance 10 reverb % Eist co-sll u'e5 th
o;isnse. An ctier,ao ts,'' hfi OK or H'l'
Eeye the bufJel ~ ga dsin'' ~ q
prave bis plea, nd ids-. :. Oh on 1872
heirg avsrr-", & rFc'1.Ay nv g. J t'
&C., Ur orliss e, H=rr h. citnso, 20 d''
ctaraata. bu uro, ne ~ lss ~ ire she laen
tt,V.ur the ,lrt, Gr 0rnIsain'j aat "a tins ctsf
a. orr .s7ioa dpas n- amer lr'p TO- soull
si'inn ~ the 81. ssa, 10 inugO prove 4a2ut'ts
o. .be scs. -,
vors b. er.nna. plea .ins aid prH re-
psvt: THE on den oi proving pJlcr can
yiea5n ef'he oHsnss chtTEen Ehh'-ai 'h'
.e,.,Gl4.a ali4l Lp-- A!u1, b. b. 4't a. D.,
by"efiqis f.n.s' agieeugG "a tns llfGut!
u of,oa. a. sh.ch hs has oacn previous 3
osrvicted with tn ~ clsr0ed uOaa Tic
10 this prop ps.iiop, ass.lt9d, Uit1out mod
ID .,ut, we caunus esr.3, foe 81 tna ep'
r-ocn r,ek, 3 u ''crllps tiC'a' osso ia sup
rlnst ys J1~ yiea 10 Mubt pfepouCerafa II
ifs favor, ard Q -Tepouderancs OF !to"i
rulLS SlOicb . tuDpdfJ tne plb&
ys,y saoo iii05Walo1 NJ tle fn
aonglt 60 ba STATES BY Mr.. Wharfnn ABOVE
vii bs found III Car. vs.. D4.ey, Il Gray
2f9) n c,se eli ed by nun in suppur6 OF hi
rule. In ,has case. d alley WIS being prose
cured uader complaint, .whicn cnsrgeo
him with selling intox'c.,ing liquors OF
ths 9Th day of December, 1854, 10 ont
Jonathan Pierce Dsley's plea was "autIe
fois conyjct," At the trial 1t appeared By
tins record of the former conviction tba
the sale there mentioned was t.
Jop,tsan Pierce, and the evil
dencc was that the same witness
testified ON the former trial who was reliee
on to support this complaint and that th'
only sales ever msde by the defendant u
Pierce were gu the three separAte days IL
January, 1884
Daley, requested the judge to instruct th
inry that lin order to obtain conviction
ia this case, the commonwealth must sno"
IN HIGH of tho sales the frs. conviction
was had - but the Judge declined to so IN.
etruct the Jury. Daley, being convic' ed
be nnpsaled to the supreme c,urt. and IL
thai court insisted on reversal OF the jldg
Ynent because me Trial judge refused u
submit to tho Jury the instruction above
The supreme court toos different view 0
that subject from that OF counsel for "a
lev. Justice Bigelow, who delivered tn
opinion OF the court disposes OF this matte
n hpllsws: ''On the trial OF fh- Issue rais
"a nv the plea OF 'eutreiois acqnit,' the al
6rmatjve was upon the defendant. IL u
for MIN to maintain by proc. the Allegation
IL his plea o. previous conviction, and Il
estabiish the i'd antity Of the offense charge
ia the complaint or indictmenr, with thp
of which he stands convict ID.