
    The City of Topeka v. E. D. Myers.
    Prosecution for a violation of a certain prohibitory liquor */ x. ordinance of The City of Topeka. From the police court of said city the defendant Myers appealed to the district court of Shawnee county. Trial at the April Term, 1884, when the defendant was found guilty, and sentenced to pay a fine of $300 and costs, and to be committed to the county jail until the fine and costs were paid. The court also ordered that defendant give a bond in the sum of $500 with security, to be of good behavior for the term of two years, etc. The defendant appeals.
    
      Frank Herald, and W. A. S. Bird, for appellant.
    
      Jasper H. Moss, for The City.
   Per Owricm:

Under the^authority of Franklin v. Westfall, 27 Kas. 614, ordinance No. 459 -of the city of Topeka, entitled “An ordinance to prohibit the sale of intoxicating liquor, and to suppress places where intoxicating liquors are sold,” and the amendment thereto by ordinance No. 494 of said city, are valid. (See subdivision 28, §11, ch. 37, Laws of 1881; articles 3 and 4, ch. 37, Laws of 1881.)

The case however must be reversed, on account of the misconduct of the prosecuting attorney in using the following words in addressing the jury: “If the defendant is not guilty, why did he not take the stand? He could have easily proven that he did not keep the place.” (Cr. Code, § 215; The State v. Balch, 31 Kas. 465, and cases cited. See also 21 Cent. L. J., p. 447; The State v. Brownfield, 15 Mo. App. 593.)  