The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1903-09-24
at STANDSTILL.
City Attorney Spencer Discuss
es Joint Cases Today.
There Are Thirty-twO Still on
the Docket.
HE HAS LITTLE HOPE.
Will Make a Statement to
Council.
Says That Judge Hazen's PO-
SitiOn Is Just.

The trial of liquor cases in the dis
trict court came to standstil this
morning. and today neither the court
nor the jury has any work to do.
This morning City Attorney Spencer
dismissed the cases against Curl. Bar
Der and Hines. as there was not suffi-
cient evidence. under the ruling that
nothing subsequent to the issuance of
the complaint could be used. to warrant
their being tried.
So far there have been no convictions.
Wednesday Burns, Lawless, Kicker
and Russum gained their freedom in
the district court. There are three cases
set for Friday, against Curry. Kirsch
and Brenner. and three for Saturday,
against Heitman. Raynor and Klauer.
City Attorney Spencer has not decided
what he viii do with them.
Besides the cases set for hearing
there are 81 cases to be tried that are
not on the trial docket. What shall
be done with these will rest with the
city council.
City Attorney Spencer said this morn
ing: Il do not know what will be done
with these 81 cases. | shall prepare a
written statement of the conditions,
and explain the cases in detail and
submit the statement to the city coun-
Gil, and will then proceed with the 80
cases as they may direct. 1t is ex-
penSive to take these cases up for trial
in the district court when the result is
that no one is convicted. There have
been over 100 jurors summoned this
week for the cases that have been
called.
The supreme court has said that
officers can not break into a joint and
make arrests without a warrant. Also
the supreme court has ruled that Off
GERS can not testify to anything that
is found in a joint when the arrest was
made after the complaint was issued.
The only chance left for the officers is
to arrest 'on view but the officers can
not get into the Joints as the doors are
barred against them.
The one thing left to do is to have
spoilers and use spotter testimony 1t
is a mistaken idea that Judge Hazen
has ruled that sDOtter testimony shall
not be considered. The trouble gen
fused to consider spotter testimony.
Judge Hazen has instructed juries that
spoilers testimony must be carefully
considered as to its truth.
Judge Hazen has held in accord
ance with the decision of the supreme
court of Colorado. that spotter testi-
monv can not be used to establish a
sale of liquor but the testimony can be
used to prove that joint is a common
nuisance The ruling that spotter teS-
timony can not be used to prove sale
is from the fact that the sDotters are
employed to secure the evidence and
that the fines go into the city treasury
and thereby the city profits.
The ruling is that where the city
reaps a profit in fines that the city can
not aid in the sale by hiring man to
go to the joint and buy liquor This
would be conniving to increase the rev.
enue of the city. The city can not en-
rich the treasury by having a spotter
buy liquor with which to make q case
of selling liquor. but If he goes into a
joint and buys liquor his testimony can
be used to prove that the joint existed
and was common nuisance before he
went there. The act of keeping the
nuisance took place without his as
sistance.
There is a great difference of opinion
among lawyers on the decision of the SUI
preme court in the Chesney case regard
ing the admission of testimony of events
subsequent to the issuance of the COM
plant. Some lawyers agree with Judge
Hazen in his construction of the opinion
and others do not. 1t is hoped that the
question will be before the stpreme- court
again in more direct manner than it was
in the Chesney case, but the question now
the supreme court by an appeal on the
part of the city. 1 have saved exceptions
in several cases and will see what can be
done.
The supreme court has ruled that no
evidence whatever pertaining to what
plaint is proper testimony to establish
any fact, but Judge Hazen has gone so
far to allow that testimony to be used
in establishing the fact of a nuisance, but
the trouble has been to connect the de-
PENDANTS with being proprietors OF the
nuisance, under such a ruling.
Not a case that has come UP at this
term of the district court has gone off on
account of faults in the complaints or
the transcripts from the police court. All
have been in proper form and every case
has been ready for trial. but all have gone
off on the question of evidence under the
ruling of the supreme court
The 81 cases appealed from the police
court, still to be placed on the trial dock
ct, similar to the cases that have been
lost by the city and 1t is probable that if
they go to trial everyone win be lost on
the same legal point regarding the evi-
dence.
TllDuc abr NllIrn