The Topeka state journal., 1903-06-18
FOLLOW IT
Judge Hazen Refused to Enter
Beaten Path.
Wouldn't Take Supreme Court
Gates Chesney Decision.
TRIAL OF JOINT CASES.
Fritz Durein Is the First One
Convicted.
More of Nichols BIunders Come
to Light.

JuQBe t1dZ6n OX6IJuieQ the supreme
court this morning while hearing the
case against Fred Ross alleged jointist.
The case was one of the "inquisition'
series brought and bungled by the late
County Attorney Galen Nichols.
The point was raised when John Gar
diner. who was acting as a deputy sher-
iff under Sheriff Lucas when Ross was
arrested was called upon to testify and
keeping. c. A. Magaw, attorney for
Ross, objected TO the question and then
Judge Hazen took occasion to overrule
the objection and in so doing to ignore
the decision of the supreme court in the
Gates Chesney case. In overruling the
supreme court, Judge Hazen said:
There is a division Of opinion among
lawyers as to what the supreme court
decided in the case of the city Of To-
peka against G. c. Chesney. In that
case the defendant was charged with
keeping nuisance by keeping a place
where intoxicating liquors were sold in
violation of the city ordinances The
complaint was filed on Nav 27 charging
that the defendant was the keeper OF the
place on May 25 and the search and
seizure warrant was served on May 80
The trial court permitted the city to
prove by the officers who served the
warrant what they saw and found at the
place described in the complaint at the
time of serving the warrant. At the
court instructed the jury as follows:
The complaint in this case was
sworn to on the 9th day of May, 1901,
and charges that the defendant kept ana
maintained this place on the 25th of that
month. 1t appears that the warrant was
served on the Goth day of May. which
would be three days after the complaint
was filed, and the court has permitted
oh,
of the place at the time the warrant
was served. This testimony is compe-
tent to be considered by the jury in
passing upon the question as to whether
the defendant was the keeper of the
place described on the 25th of Nav and
1t is for you to say what weight shall be
given to this testimony, in determining
the guilt or innocence of the defendant
The evidence showed that defendant
was found at the place described in the
complaint and that the officers had
some trouble in entering the room but
when they did so they found the de-
fendant attempting to escape with
peer pump IN his possession which had
been recently removed from a keg of
beer in the room. The supreme court
apparently holds that the trial court
erred in admitting this testimony and
also in giving the above instruction.
although the evidence was introduced
without any objection on the part of
the defendant
The supreme court. in discussing the
instruction, assumes that the court by
that instruction told the jury that they
might presume or infer from the con
ditien of the place at the time of the
service of the search and seizure war
rant that the defendant was the keeper
In this assumption it seems to me that
court is mistaken. What the trial court
said to the jury was that they might
weigh that testimony together with all
the other facts and circumstances
proven for the purpose of determining
whether the defendant was the keeper
of the place, and that the jury was the
judge of what weight should be given
to that testimony.
In the opinion. the supreme court
quotes approvingly from the 22d AmeTi-
can and English Encyclopedias OF law
the following: The presumption as 10
the continuance of a condition or state
of facts once shown to have existed does
not run backwards. and the law never
raises from the proof of the existence
of a present condition or state OF factS
any presumption that the same condl-
ton or facts existed at prior date
This undoubtedly is a correct annuncl-
alton of the law but is the law of pre-
sumption. and if the trial court had
told the jury that they might presume
that the defendant Chesney was the
keeper of the place from conditions
found at the time of serving the search
and seizure warrant then this law
would be applicable. But the trlal
court did not so instruct the jury. Dut
onIv told them that that testimony
should be weighed together with all the
other evidence in the case in determln-
ing the DEFENDANTS guilt or innocence
In the body of the opinion the supreme
court says that the trlai court elA - 80 -
admitting this testimony. If TINS testi-
n,onv was competent for any purpose
then no error was committed IN adhfit-
ting it, If a literal constructor nluse
he given TO the opinion then TINS cou.
would he bound to hold that the condl-
49, IF 4he nlace and its surroundings
at the time of the service OF tne sedfth
and seizure warrant could not be proven
for any purpose. It is the duty OF % t%re
trial court to follow the declslon ol ti1 @
s,1nrerne court and the question now Is
what construction must be placed uppn 3t.a
t,,e decision of the supreme court in the
I Chesney case. == =,
..rThere is nothing in the opinion 70
/ indicate that the supreme e0ull -
/ baeing the decision upon the iehgln -. u
firoe that elapsed between the serEiSee 8
i Of the warrant and the date charged III
the complaint or that the length OF l'il1e 4'-
+ between those dates was lrnpol "a = -, =
1 Ire trial of those class of cases 1 ha Fe
4 uniformly held that the condition OF the
nlace as found at the time OF the serV-
! ice of the search and seizure Waifat. l.
might be proven and consloeIeu pS @ -
/ i,l1v in passing upon the question as
70 whether the place was common
I nuisance at the time charged; and not
v-iti7standine the decision of the SUI
preme court in the Chesney case I am
/ inclined 70 hold the same way still
THE only point that I think the su-
preme court definitely settled in the
/ r,besl,ey case was that what the off,
GERS saw and found at the time of serT.
/ ing the warrant cannot be considered
for the purpose of tending to prove
that the defendant was the keeper OF
the Dlace at the time charged in the
complaint. and this irrespective Of the
length of time which ELAPSED between
the time of the service of the warrant
and the date charged in the complaint
This is the extent to which this court
win now go in following the Chesney
case 1t would seem, however, that
notwithstanding that opinion Of tt :
supreme court. that where a person Is