The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1903-09-29

against joint keeper, the complaint
could not be made and the warrant is
sued and served in any more effective
manner than in any of these thirty
seven cases Moreover. the instruction
given by Judge Hazen following his
construction of the decision in the
Chesney case. did not in any way affect
the making of the complaint or the is
suance and service of the warrant in
any of these cases. The instruction
given by Judge Hazen was, in sub
stance. that evidence as to the condi-
ton of the place. and what was found
there at the time of serving the war
rant. was competent to show whether
the place was nuisance. but that no
evidence of this kind procured subse-
quent to the making of the complaint
could be considered by the jury in de-
termining whether the defendant was
the keeper of the place The effect of
this instruction as applied to these
liquor cases is. that if within fifteen
minutes after the COMPLAINT is sworn
to, the officers in serving the warrant
find the defendant behind a saloon bar.
caught in the very act of serving
whisky and beer over the bar to a
crowded barroom the jury cannot con-
slider these facts as ever. tending to
show that at the time the complaint
was sworn to the defendant was main
tanning a nuisance.
No evidence offered by the city in re-
gard to the condition of the place, what
was going on and the liquors found,
was ruled out by Judge Hazen. 1t was
all admitted. 1t was admitted for the
purpose of determining whether the
place was a nuisance. but the court in
structed the Jury not to considr it for
the purpose of determining who was
the keeper of the nuisance.
1t is plain from the foregoing that
the only way in which the decision of
the supreme court in the Chesney case,
and Judge Hazen's instruction affected
the cases in the district court, was in
ROT 1rr
Dlaes-
1t is therefore clear that failure to
convict in these cases involved the
question of sufficiency of evidence and
more particularly the sufficiency of evil
dence as to who was the keeper of the
place.
l deny that under the law or under the
policy necessarily pursued by the city in
its fight on the joints L am responsible
Tor the Suff1c1ency of the evidence. IN
der the law it is my duty to advise with
the chief of police as to the amount
and character of the evidence necessary
to convict This 1 have done whenever |
he has sought my advice l certainly
have never nut any limitation on the
amount of evidence he should have in |
any case. 1t is not my duty to hunt UP !
evidence Under the law the chief of
police and not the city attorney origin
ates these prosecutions. 1t is my duty /
to make out the complaints and prose- |
cute the cases on the evidence furnished |
me. and this I have done. In liquor
cases the chief of police. or some police |
officer. swears to the complaint. When |
the chief of police asks for a complaint /
it is my duty to issue it, and it is his |
business to know whether he has suffi- |
cient evidence to sustain it. The chief !
of police is under the orders and direc-- /
tions of the mayor. the head of the city !
government, and if 1 should refuse to |
issue a complaint on the request of the |
chief of police. 1 would be interfering
with the executive policy which the !
mayor was elected to carry out
Moreover, if I were charged with the i
duty of Investigating every arrest and |
prosecution about to be instituted by |
the police officers, considering the whole |
sale manner in which arrests are made |
and prosecutions carried on, it would |
take nearly all, if not all of my time
The law charges the mayor and police !
department and not the city attorney |
with the enforcement of the ordinances
of the city 1t is my duty to cooperate |
with them in enforcing the law. This |
I have done and am ready and willing |
to do in the future. I insist that 1 have /
discharged every duty imposed on me |
by law.
Again. there seems to be an impress
sion with some people, that if Judge |
Hazen had not given the instruction he |
did, there would have been convictions |
in many of these liquor cases. This i'm |
preston is wrong. AS 1 have already |
stated, in only one of the nine cases |
tried did this instruction prevent a pos |
sible conviction. In other words, in !
seven of the cases tried there was or /
would have been an acquittal on the |
merits of the evidence. From my knOwl- /
edge of the six cases dismissed, and of /
the other % cases now pending in which |
there are written complaints, I think l /
am conservative in making the state /
ment, that there was and is only a |