
    The State of Kansas v. Frank Green.
    No. 13,930.
    (77 Pac. 95.)
    Appeal from Butler district court; G. P. Aikman, judge.
    Opinion filed June 11, 1904.
    Affirmed.
    
      G. G. Coleman, attorney-general, and W. M. Bees, for The State.
    
      E. N. Smith, for appellant.
   Per Curiam:

The appellant was charged with, and convicted of, a violation of the prohibitory law (Gen. Stat. 1901, §§2451-2500), in two counts. The evidence upon which he was convicted indicated that he was what is commonly known as a “boot-legger.” Upon the request of the witnesses, and the giving to him of money by them therefor, he procured and brought to them intoxicating liquors.

The court charged the jury that the law provides that any shift or device to evade its provisions shall be deemed an unlawful selling, within the provisions of the prohibitory act (Gen. Stat. 1901, §2467). Objection is made to this for the reason, in the language of appellant’s brief, that “the defendant was not on trial for any shift or device, but. for an unlawful selling.” This, with some cognate questions relating to the introduction of evidence, is urged as error with an apparent degree of seriousness; it, however, lacks substance.

Another ground of error, equally diaphanous, is that the court did not tell the jury what constituted a sale. No such instruction was requested, nor was it required. The meaning of the word “sale,” in this connection, is too well known to require explanation.

Again, complaint is made of the giving of the following instruction:

“The state has elected to ask for a conviction of the defendant on the testimony of certain witnesses, and if the defendant is convicted by the jury it must be upon the testimony of those respective witnesses and on the particular count which the jury believe, beyond a reasonable doubt, that the evidence of such witnesses sustain.”

The objection urged is .that this only required the jury to believe, beyond a reasonable doubt, that the evidence sustained to some extent the charge upon which the state elected to try the defendant. We think this criticism is hypercritical. The court elsewhere instructed the jury that the prosecution must prove the sales charged beyond reasonable doubt or the jury should find the defendant not guilty, and we think that the language used in the criticized instruction was substantially the same.

We find no error in the entire case, and, hence, the judgment is affirmed.  