State v. Barron

Pierpoint, J.

The first question presented by the exceptions, is as to the admissibility of the evidence offered by the respondent to show “ the habit of gentlemen in traveling about the country to carry .spirituous liquors in bottles with them.” The government had proved by several witnesses that they had drank liquor in rooms in the respondent’s house, on public occasions, when asked to do so by parties occupying such rooms, but did not know where the liquor came from; It was to meet this class of testimony that the offer was made, The court rejected the testimony, and we think properly. Such evidence would be quite too remote and indefinite to warrant a *61 jury in drawing any inference therefrom, as to the source from which the liquor came that they drank upon the occasions referred to. If the offer had been to show that the guests who visited this house were in the habit of bringing their liquor with them, and furnishing it to their friends in their rooms, it might have been admissible as tending to show the source from which the liquor came, that the witnesses drank, and as rebutting the inference that would otherwise arise, that it was obtained in the house, of the proprietor ; but the simple fact that travelers are in the habit of carrying liquor with them, has not, legitimately, any such tendency.

The second question, is as to the admissibility of the testimony of Jasper Hazen, the officer who subpoenaed the government witnesses. What the prosecution offered to prove by this witness was clearly admissible as tending to show that the respondent had been instrumental in causing his two clerks to be absent, so that they could not be used as witnesses against him. If any one had “ got them out of the way,” the inference would have been that it was done through the respondent’s agency, as no other person would have had any interest in producing such a result. But the testimony given by Hazen did not come up to the offer, and was not admissible. He states no fact of his own knowledge. He simply states “ that he heard that the clerks were not at the Junction, and he did not look for them ; that he understood they had gone to Boston.” After the testimony was given it was again objected, to, but was not excluded. We think the court should have told the jury that this evidence must be laid entirely out of the case as being inadmissible and incompetent to establish any fact against the' respondent; but being received and the jury allowed to consider it, it was well calculated to create a prejudice against him, and might have contributed materially to the result. In this we think there was error.

In the third place it is insisted that the court erred in submitting the question to the jury whether or not ale is intoxicating. It is claimed that this is a question of law and should have been decided by the court, and a labored and learned argument has been made to satisfy us that the jury are not judges of the law in criminal cases. We think the rule is now well settled in this state that in criminal cases the jury are the judges of the law. It is the duty of the court *62 however to instruct the jury as to the law applicable to the case on trial, and if the jury disregard the instructions or mistake the law, and render a verdict that is clearly in violation of law, the court may for that reason set aside the verdict, if the respondent is convicted. With these restrictions upon the power of the jury, the evils that are apprehended as the result of the rule, will be found to exist we think only in the imagination; but this question does not arise in the case. Whether ale is intoxicating or not, is not a question of law, but of fact, and is peculiarly within the province of the jury.

But it is said, if it be regarded as a question of fact, then the court erred in submitting it to the jury, as there was no evidence to show that ale is intoxicating.

There is a class of liquors or liquids that are universally conceded and known to be intoxicating. Some contain a greater proportion of the intoxicating properties than others. Wine is less intoxicating than brandy, yet one is as universally acknowledged to be an intoxicating liquor as the other. So with ale ; everybody understands that it is intoxicating, and that it comes within the provisions of the statute that prohibits the sale of all intoxicating liquor. When the government in a prosecution for the violation of the statute, proves the respondent guilty of selling or furnishing any of this class of liquors contrary to the statute, that is sufficient to warrant the jury in finding him guilty of selling or furnishing intoxicating liquor. There is no moré occasion for requiring affirmative proof that ale is intoxicating, than that brandy is intoxicating, or that gunpowder is explosive. The jury are at liberty to act upon the knowledge they possess upon the subject in common with all the rest of mankind. It is possible that ale may be manufactured with so small a proportion of the intoxicating properties, as not to come within the class that are denominated intoxicating liquors. If so it must form an exception to the general rule, and if a respondent would avail himself of such a fact, it is incumbent upon him to prove it.

It is further insisted that the county court erred in their construction of the statute as to what constitutes a distinct offence under it, subjecting the offender to the penalty. The court told the jury “that *63 in case of one or more persons drinking ‘intoxicating liquor, furnished or sold by the respondent, upon the invitation and call of another, the furnishing or selling what was drank by each person would constitute a distinct offence, when no definite portion, as a bottle, or pint or quart, or other definite portion of the liquor was set apart and appropriated to and became the property of the person calling for it, and when upon the call a bottle or bottles containing the desired liquor was set down and each poured out what he saw fit, leaving the remainder the property of the respondent.”

The jury by their verdict found the respondent guilty of thirty-six acts of furnishing, and no acts of selling, so that the question here is what constitutes a distinct act of furnishing.

The statute provides that if any person, &c., shall sell, furnish or give away any intoxicating liquor, &c., he shall forfeit and pay for each offence the sum of ten dollars.

We think the county court in the charge to the jury laid down a rule broader than the statute will warrant; the extent of the forfeiture incurred by the respondent is made to depend not upon an act of his, in furnishing liquor, but upon the act of the person to whom it has been furnished after it has been placed at his disposal. When liquor is called for and furnished by the person on whom the call is made, the act of furnishing is complete, and the penalty is incurred, and it does not constitute a new and independent act of furnishing on the part of the person furnishing it, if the person to whom it is furnished allows another to partake of it with him. That depends upon his will, and is an act for which he is responsible, and not the person who supplies the liquor. Where liquor is furnished in answer to a single call, at the same time, and by a single act, it can constitute but one act of furnishing, and the party incurs but one penalty, notwithstanding it may be drank by more than one person. But where the liquor is furnished either on a single call, or more, if it be done at different times and by separate acts, no matter how closely these several acts may follow each other in point of time, each act of furnishing constitutes a separate offence, and subjects the party to a separate penalty, whether the liquor be all drank by the same person or by different persons.

*64 Under the charge of the court it is possible the jury may have found the respondent guilty of several acts of furnishing, when under the construction which we put upon the law there was in fact but one.

■A new trial is granted