The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1903-09-22
Forty City Cases May Fall by
the Way.
Mr.. Spencer Not Prepared tC
Prove Vital Points.
NO USE TO TRY THEM.
Says He Can't Convict Under
Court Ruling.
Judge Hazen Says He Is Fol-
lowing Supreme Court.

City Attorney Spencer has little hope
of convicting the 40 jointists who will
appear in the district court for trial.
The cause is the ruling of the supreme
court in the Chesney case wherein the
supreme court held that when a joint
vas pulled and a person was arrested
and charged with being the proprietor
that what the officers and other wit
nesses see at the place subsequent to the
issuance of the complaint can not be
used as evidence against the accused
party.
Judge Hazen has ruled somewhat in
accordance with the decision of the su-
preme court before but he again follow
ed the supreme court this morning in
the case of Lucy Stevens. colored. who
was arrested by the police on the
charge of selling liquor and maintain
ing nuisance at 314 East First street.
Judge Hazen allowed the prosecution
some liberties not provided for in the
supreme court ruling. The ruling of
the higher court was to the effect that
no testimony subsequent to the is
suance Of the complaint could be intro
duced but Judge Hazen announced that
he would allow the prosecution to in
troduce testimony relative to what the
officers found at the joint simply for
the purpose of proving whether the
place was a nuisance or not but that
such testimony could not be used to
connect anyone with the place as bar
tender or proprietor.
When the evidence in the Lucy
Stevens case was all in Judge Hazen
delivered his rulings and the stumbling
block was the following paragraph:
The court has permitted the city to
rlff aVFfH Qu
saw and found when they went to the
place described for the purpose OF serv-
ing the warrant on the defendant. This
testimony is competent to be considered
by the jury as bearing on the question,
OF whether the place described In the
complaint at the time the complaint
was made was a common nuisance by
being the place where intoxicating
liquors were kept for sale in violation
OF the ordinances of the city of Topeka
TFis testimony being and relating to
matters and conditions found after the
complaint was made maybe considered
by the jury in determining whether the
place was a common nuisance ar
charged at the time the complaint was
sworn to, but this testimony is not COM
petent and cannot be considered for the
purpose Of proving or tending to prove
that the defendant was the keeper of the
place al the time charged in the COM
plaint."s
city Attorney Spencer objected to the
clause IF that is to be the ruling of
the court there is little use of our try
ing the forty odd cases on the docket
appealed from the police court
Judge Hazen said that he had so ruled
before and that as the supreme court
had decided the point he would have to
follow that ruling The Chesney case
was tried before Judge Hazen and the
court allowed the testimony of the off,
GERS as to what they found in the joint
when Chesney was arrested to be sub
mitted as testimony against Chesney
and the joint. The case was carried to
the supreme court and was reversed.
The decision of the supreme court was
that nothing subsequent to the issuance
of the complaint could be introduced In
the testimony.
bench Judge Hazen said: When the
officers went to the place on East Sixth
street the doors were barred against
when the officers went in Chesney was
making his escape from the place and was
carrying a beer pump. This was shown
in the testimony. l thought at the time
that 1t was good evidence. and ! still think
so. but the supreme court has thought
the ruling was made that nothing that
happened after the issuance of the COM
plant would be proper testimony. ] must
follow the supreme court decision. l have
gone far as to allow the testimony of
the officers as TO what they found in the
places to be used to establish the fact of
a nuisance, while the ruling of the su-
preme court is that such testimony is not
competent for any purpose. The supreme
court may say some time that a part Of
their opinion is ridiculous, but now the
decision stands
City Attorney Spencer announced that
! With such a ruling it was useless for him
I o argue the case. and c. A Magaw, at
(. .orney for the defendant. was willing
for the jury to bring in a verdict with
out argument.
The jury retired Under the instructions
there was nothing for the Jury to do but
bring in a verdict of not guilty. as there
was no evidence against Mrs. Stevens ex-
cept that of the officers who made the
arrest The jury was out a half hour.
and the lawyers and the court were be-
coming impatient. Finally the jury
turned with a verdict of not guilty.
So far the liquor cases tried in the
district court on appeal from the police
court have been supported by very poor
evidence, and the present prospects are
that very few. If any, cases at all will be
found guilty.