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low should be reversed. Now, we think that he was neither. Where an agent, such as is usually denominated a "drummer" or "commercial traveler," simply exhibits samples of goods kept for sale by his principal, and takes orders from purchasers for such goods, which goods are afterwards to be delivered by the principal to the purchasers, and payment for the goods is to be made by the purchasers to the principal on such delivery, such agent is neither a peddler nor a merchant; nor will a single sale and delivery of goods by such agent, or by any other person, out of the samples exhibited, or out of any other lot of goods, constitute such agent or other person a peddler or a merchant. As lending support to these propositions, we would cite the following authorities: Ex parte Taylor, 58 Miss. 478; Com. v. Jones, 7 Bush, 502; Com. v. Farnum, 114 Mass. 267. See, also, other cases cited by counsel for the defendant.

There does not seem to be any authority under the statutes for cities of the second class to levy license taxes upon drummers or commercial travelers. The judgment of the court below will be reversed, and cause remanded for a new trial.

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1. INTOXICATING LIQUORS-INDICTMENT-CONVICTION.

Where an indictment was found and filed on January 3, 1883, by the grand jury, charging an offense under section 7 of the prohibitory liquor law of 1881, and on March 10, 1885, such section was repealed; but the repealing statute provided that all prosecutions then pending should be continued the same as if such repealing statute had not been passed: held, that all the rights and remedies which the repealing statute purported to save were saved, and that the defendant may be tried, convicted, and punished under said indictment. 2. SAME-CHARGING SALE WITHOUT PERMIT.

The indictment, which charged that the defendant sold intoxicating liquors without a permit, and in violation of law, held sufficient.

3. SAME-COMPELLING ELECTION BY STATE.

Where the indictment charged, among other things, that the defendant "did unlawfully sell and barter spirituous, malt, vinous, fermented, and other intoxicating liquors," and the defendant moved the court to require the state to elect to prosecute upon some particular sale or gift of some particular kind of liquor, and this motion was made before the commencement of the trial, and the court overruled the motion, held, not error.

4. SAME-IMMATERIAL EVIDENCE.

Where a witness testifies to a fact, and such fact is abundantly proven by the testimony of other witnesses, and there is no contradictory evidence, held, that it is immaterial whether the testimony of such witness is competent or not.

5. SAME-EVIDENCE-PERMIT.

Where one of the questions in issue is whether the defendant had a permit to sell intoxicating liquors under the prohibitory liquor law of 1881, and the probate judge testifies as a witness that he has the possession of all the records of the probate judge's office, and has at that time the record of permits, and that such record shows that no permit has ever been granted to the defendant, and he also testifies that he has never issued any such permit, held, that the evidence is competent, and proves prima facie that the defendant did not have any such permit.

6. SAME-WITNESS NOT INDORSED ON INDICTMENT.

Where a witness in a criminal prosecution testifies in behalf of the state without his name having first been indorsed upon the indictment, and so testifies without objection, held, that it is too late to make the objection for the first time in the supreme court. A conviction and sentence upon the testimony of such witness may be upheld. The rule enunciated in the case of State v. Crimmins, 31 Kan. 376, S. C. 2 Pac. Rep. 574, with regard to the election of the offense relied upon for a conviction, referred to and followed. 7. SAME-PROOF OF SALE TO WITNESS.

In a criminal prosecution upon an indictment, where the state relies for a conviction upon a sale of beer made to M., it is not competent for the defendant to show by the testimony of M. that the offense upon which the state relies for a conviction was not testified to by M. before the grand jury; for the grand jury may find indictments upon their own knowledge. State v. Skinner, 34 Kan.; S. C. 8 Pac. Rep. 420.

8. SAME-COSTS-COUNTY ATTORNEY'S FEE.

Upon a conviction in a criminal prosecution for a violation of section 7 of the prohibitory liquor law of 1881, the court may, under section 12 of such law, tax against the defendant, as part of the costs, a county attorney's fee for $15.

Appeal from Edwards county.

S. B. Bradford, Atty. Gen., and Robert McCanse, for appellee. Nelson Adams, for appellant.

VALENTINE, J. This was a criminal prosecution upon indictment, wherein the defendant was charged with selling intoxicating liquors, in violation of the prohibitory liquor law of 1881. Laws 1881, c. 128. The defendant was found guilty and sentenced to pay a fine of $200 and costs, and from this sentence he now appeals to this court. Several questions are presented for consideration, which we shall consider in their order:

1. It is claimed that the court below erred in overruling the defendant's motion to quash the indictment, for the reason that section 7 of the prohibitory liquor law of 1881, the statute upon which this prosecution is based, had been repealed prior to the making of the motion, and prior to the trial and sentence in this case. The indictment, however, under which the defendant was prosecuted was found and filed on January 3, 1883, which was before the repeal of said section 7; and when such section was thus repealed, which was on March 10, 1885, the repealing statute provided that all prosecutions then pending should be continued the same as if such repealing statute had not been passed. Laws 1885, c. 149, § 19. See, also, State v Showers, 34 Kan. ——; S. C. 8 Pac. Rep. 474. We think that all the rights and remedies which the saving clause, contained in the repealing statute, purported to save were saved by it, and that the defendant's motion to quash the indictment was properly overruled, and that he was properly tried, convicted, and sentenced, and may be punished under the same.

2. It is further claimed that the indictment is defective for the reason that it does not show whether the defendant was "to be prosecuted for furnishing or giving a small quantity of wine for sacramental purposes, or for giving a friend or family a glass of beer or wine, with no intention to avoid a sale." The indictment, however, charged

that the defendant actually sold intoxicating liquors without a permit, and in violation of law, and therefore it is not open to the objection urged against it by the defendant. We think it is sufficient.

3. It is claimed that "the court erred in overruling the defendant's motion and demand to require the state to elect and stand upon some particular sale or gift of some particular kind of liquor mentioned in the indictment." The charge was that the defendant "did unlawfully sell and barter spirituous, malt, vinous, fermented, and other intoxicating liquors;" hence this motion or demand. But the motion or demand was made before the commencement of the trial; hence the court did not err in overruling it. State v. Schweiter, 27 Kan. 500; State v. Skinner, 34 Kan. --; S. C. 8 Pac. Rep. 420.

4. It is claimed that the testimony of the former probate judge was incompetent. We think it was competent; but even if it was not, still, under the facts in the case, it makes no difference, for the the fact which he was called upon to testify to was abundantly proved by the testimony of the present probate judge, and there was no contradictory evidence. And, further, the exception to the admission of this testimony was general, embracing the entire testimony of such witness; and was not to the admission of any particular portion thereof.

5. It is also claimed that the testimony of the present probate judge was incompetent. He testified that he had the possession of all the records belonging to the probate judge's office, and that he then had "the record of permits," and that such record showed that no permit had ever been granted to the defendant, and that there was no entry on the journal of the defendant's having any such permit. Under the statute (Prohibitory Liquor Law 1881, § 2) the record of permits is the journal of the probate court. Hence he must have had the journal in court at the time when he testified. This evidence we think was competent, and, in the absence of contradictory evidence, was amply sufficient. It was at least prima facie evidence that the defendant did not have any permit, and there was no evidence to the contrary. Both the former probate judge and the present probate judge testified, in connection with the record of permits, that they, severally, had never issued any permit to the defendant, and this factthat the defendant did not have any permit-was the only fact concerning which either the former probate judge or the present probate judge was called upon to testify to. This case is clearly distinguishable from that of State v. Nye, 32 Kan. 201; S. C. 4 Pac. Rep. 134. The exception to this evidence was also to the whole of it, and not to any particular portion thereof.

6. It is also claimed that the court below erred in permitting the witness J. F. Marsh to testify in the case, for the reason that his name was not indorsed on the indictment. Now, no objection was made in the court below to Marsh's testimony for this reason, and it is too late now to make such an objection. We think a conviction

upon Marsh's testimony was rightfully upheld. Also the election on the part of the state to rely for a conviction upon a sale of beer made to Marsh, we think, comes within the rule enunciated in the case of State v. Crimmins, 31 Kan 376; S. C. 2 Pac. Rep. 574.

7. It is also claimed that the court below erred in overruling the defendant's plea in abatement, and in denying the defendant the right to show by the witness Marsh that the offense upon which the state finally elected to rely for a conviction was a different offense from the one found by the grand jury; or, rather, that it was not an offense with regard to which Marsh testified before the grand jury. We do not think that the court below erred in this particular. The grand jury may have found the indictment upon their own knowledge. State v. Skinner, 34 Kan. ——; S. C. 8 Pac. Rep. 420. The court also instructed the jury that they could convict only for a sale of beer to Marsh.

8. It is also claimed that the court below erred in taxing against the defendant as costs a county attorney's fee for $15. We perceive no error in this. Section 12 of the prohibitory liquor law of 1881 authorizes the same to be done. See, also, section 10 of the prohibitory liquor law of 1885. This fee is not imposed as a part of the punishment, but is simply imposed as a part of the costs of the prosecution, for services rendered by the county attorney.

9. It is also claimed that the court below erred in overruling the defendant's motion for arrest of judgment and for a new trial. We think no error was committed in this respect.

The judgment of the court below will therefore be affirmed. (All the justices concurring.)

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1. CARRIER OF GOODS-"HOUSEHOLD GOODS."

Household goods mean everything of a permanent nature (that is, articles of household which are not consumed in their enjoyment) that are used or purchased, or otherwise acquired, by a person for his house; but not articles of consumption, as potatoes, bacon, etc., especially where such articles are held for sale or barter.

2. SAME-CARRIAGE OF HOUSEHOLD GOODS AT REDUCED RATES-CHARGE FOR POTATOES, BACON, ETC.

Where a shipper enters into a special written agreement with a railway company to transport over its road one car-load of household goods and two horses, from Kansas City or the state line to Minneapolis, in this state, at a greatly reduced rate, and the shipper, without the knowledge or consent of the railway company, puts into the car limited quantities of potatoes, bacon, vinegar, and salt, a part of which he has for sale and barter, and the regular rates for the carriage of the potatoes, bacon, etc., are higher than the rates for household goods and horses, the company is entitled to be paid by the shipper, in addition to the contract price for carrying the household goods and horses, its regular rates for carrying the potatoes, bacon, etc.

Error from Ottawa county.

In April, 1880, A. G. Smith was the agent of the Union Pacific Railway Company at Minneapolis, in this state. David V. Findley had shipped from Bloomington, Indiana, to Minneapolis, via the Union Pacific Railway, on April 12, 1880, a car in which there were two horses and some household goods, and also potatoes, bacon, vinegar, and salt. Upon the arrival of the car at Minneapolis, Findley paid $100 freight, $65 of which was for back charges and $35 for transportation over the Union Pacific Railway from Kansas City, or state line, to Minneapolis. After the payment of this money to Smith, the agent of the railway company, the latter discovered that the company had transported in the car, along with the household goods for Findley, potatoes, bacon, vinegar, and salt, and thereupon demanded of Findley $11.88 as additional or extra freight, and also held the goods for the same. Findley refused to pay the $11.88, and on April 16, 1880, commenced an action against A. G. Smith before a justice of the peace of Ottawa county to replevy the goods from Smith, for which extra or additional freight was charged. Judgment was rendered in his favor before the justice, and the defendant appealed to the district court. Upon leave of that court Findley filed the following petition, court and title omitted:

"Said plaintiff complains of said defendant, and says that plaintiff is entitled to the immediate possession of the following described goods, and that he is the owner of the said goods, to-wit: (30) thirty bushels of potatoes, of the actual value of $30; 14 barrels of apple vinegar, at the actual value of $10; barrel of salt, at the actual value of $1.75; 200 pounds hog meat, of the actual value of $20. Said plaintiff alleges that said defendant wrongfully detained said goods for the space of one day; that said plaintiff was detained at Minneapolis, Kansas, for the space of two days by reason of not getting possession of said goods, to his damage in the sum of ($30) thirty dollars. Plaintiff therefore demands judgment for the immediate possession of said

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