Jones v. State

85 P. 302, 73 Kan. 771, 1906 Kan. LEXIS 326

• Court: Supreme Court of Kansas
• Decided: March 10, 1906
• Docket: No. 14,501
• Status: Published

Opinion

Per Curiam:

The county attorney of Trego county filed an information which charged “that on the 14th day of February, 1903, . . . one J. Q. Thompson, in a certain frame building situated on the main street of Collyer, in said county, . . . did then and there unlawfully sell and barter spirituous, malt, vinous, fermented and other intoxicating liquors” without a permit. Thereupon a warrant was issued, the defendant arrested, and he gave bond in the usual form for his appearance on the first day of the next term of the district court of Trego county to answer the charge. Court convened October 6, 1903. Counsel for the defendant appeared and entered a plea of not guilty, and demanded a trial. The defendant did not appear in person. The county attorney then asked permission to file an amended information containing two counts, which was granted, to which the defendant by his counsel objected and excepted. The amended information contained the original count recopied, with the .exception that in the original information the offense was charged to have been committed in a building “situated on the main street, of Collyer, in said county,” while the amended information in this respect stated that the offense was committed in a building “situated on the west side of a certain street sometimes called Main street, in the town of Collyer, in said county of Trego.” The second count charged the' defendant under the prohibitory law with maintaining a nuisance.

After the filing of the amended information the defendant’s • attorneys announced to the court that they would not and did not appear ■ for the defendant to plead or answer to the said amended information; that they would appear and answer for him to the original information and none other. The court thereupon ordered the non-appearance of the defendant entered on the record and adjudged his recognizance forfeited. The cause was then continued for the arrest of defendant. Thereafter this action was brought upon the forfeited recognizance. The defendants demurred to the petition, which was overruled; and, the defendants not wishing to plead further, judgment was rendered against them for the amount of the face of the bond, to reverse which they prosecute error.

The defendant not having appeared either by counsel or in person to answer the charge in the amended information, it was the duty of the court to cause his non-appearance to be entered and to declare and enter a forfeiture of the recognizance. The petition contains all the facts and states a cause of action. The judgment of the district court is affirmed.