
    No. 28,383.
    The State of Kansas, Appellee, v. W. A. Springer, Appellant.
    
    (272 Pac. 189.)
    Opinion filed December 8, 1928.
    
      Ira C. Snyder and C. I. Moyer, Jr., both of Manhattan, for the appellant.
    
      William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, and Walter Reed Gage, county attorney, for the appellee.
   The opinion of the court was delivered by

Harvey, J.:

W. A. Springer was charged with being a persistent violator of the intoxicating liquor law. He was found guilty and has appealed.

The principal complaint here is that the court erred in excluding evidence offered on behalf of defendant tending to show that he was insane at the time of the first conviction relied upon by the state. This excluded evidence was not offered by affidavit, or other appropriate method, on the hearing of the motion for a new trial, as required by R. S. 60-3004 (see State v. Vandruff, 125 Kan. 496, 502, 264 Pac. 1060, and cases there cited). Hence, the question argued is not properly before us. We may say, however, that the proper rule would appear to be that the question whether defendant, at the time of the prior conviction, was insane to the extent that it would affect the validity of the judgment and sentence of the court should have been raised at the trial of that case, and not having been raised then could not be considered on the trial of this case.

Appellant further contends that the evidence in this case is not sufficient to support the verdict. This contention lacks merit. The ■evidence was abundant; we shall not take space-to recite it. In fact, the evidence indicates that the jury was unduly lenient with defendant in that it returned a verdict of guilty on one count only.

The judgment of the court below is affirmed.  