Austin v. Carswell

PUTNAM, J.

I think an error was committed upon the trial in overruling plaintiff’s objections to the evidence offered by defendant, to show that she had been taken to Sandy Hill, and fined $100. This evidence was irrelevant to the case on trial, and may have had some influence upon the jury. It is held that illegal evidence tending to excite the passions, arouse the prejudices, awaken the sympathies, or influence the judgment of jurors rriay not be considered harmless. Hutchins v. Hutchins, 98 N. Y. 56 . Although this evidence was improperly received, the error could have been cured had the court afterwards struck out such evidence, or directed the jury to disregard it. The remark of the judge, that “whether there have been prosecutions of criminal nature for offenses of this nature or not * * * is no concern of yours,” cannot" be deemed a striking out of the evidence in question, or a direction to the jury to disregard it. To remedy an erroneous reception of evidence, it must be plainly stricken out, or the jury must be distinctly told to disregard it. The above-quoted instruction of the trial judge is ambiguous, and does not come up to this requirement. Again, the judge was requested to charge that defendant may be liable civilly, although she may have been prosecuted criminally for the same offense. He declined to so charge, on the ground *479 that he had already charged on that point. I am unable to discover that he had charged in that regard. I think plaintiff was entitled to have the instructions requested given to the jury. For this error there should be a new trial. It is therefore unnecessary to consider other exceptions, or whether- the charge of the trial judge to the effect that, if Roach made the sales of liquor shown on the trial without the knowledge or consent and against the instructions of defendant, she was not liable, is correct or not. It was shown that defendant was proprietor •of the hotel, and that Roach, at the time of such sales, was her bartender. He testified that the receipts for all sales of liquor were passed ■over to defendant. Under such circumstances, there are authorities holding defendant liable although Roach had sold the liquor against her express directions. 3 Amer. & Eng. Enc. Law, 258; Smith v. Reynolds, 8 Hun, 128 ; Keedy v. Howe, 72 Ill. 133 ; George v. Gobey, 128 Mass. 289 . And see Amerman v. Kall, 34 Hun, 127 . Without passing upon this point, however, and for the reasons above stated, I think the judgment should be reversed, and a new trial granted, costs to .-abide the event. All concur.