120 Ill. 179 | Ill. | 1887
delivered the opinion of the Court:
This writ of error is prosecuted from a judgment of the Appellate Court for the Third District, affirming a conviction, of the plaintiffs in error, in the county court of Schuyler county, of the offence of selling intoxicating liquor to persons in the habit of getting intoxicated.
The proceeding was by information. A motion was made in the trial court to strike the information from the files, which the court overruled. • It is insisted there was error in this. Under the statute, all offences cognizable in the county court must be prosecuted by information of the State’s attorney, Attorney General, or some.other person. (Rev. Stat. p. 343, see. 182.) And it provides, that where the information is presented by any person other than the State’s attorney or Attorney General, the county ■ judge shall indorse thereon that there is probable cause for filing the same. It is contended that the information is that of one Charles S. Phelps, because his affidavit is thereto appended that the matters and things set out in it are true, and so, that the information was improperly filed, not having the required indorsement thereon of the county judge. There is nothing in'the point. The information is presented by the State’s attorney. It so states in the beginning, -and is signed by him. The affidavit would seem to have been in accordance with an observation which was made in Myers v. The People, 67 Ill. 510, that no warrant should be issued upon an information without affidavit. But the affidavit does not make the paper the information of Phelps.
It is also insisted, the court erred in permitting the question, and answers of witnesses, that individuals charged to be persons in the habit of getting intoxicated, were in such habit. The general rule, it is true, forbids the opinions or conclusions of witnesses from being given in evidence; but whether or not a person possesses a certain habit, is rather a question of fact than of opinion or conclusion. It respects a person’s condition, as to which witnesses are often allowed to speak without being confined to a narration of the particulars which go to constitute the condition. Thus, under proper circumstances, a common witness may testify directly as to sanity, solvency or insolvency; as to a person being sick or in pain; and, as in The People v. Eastwood, 14 N. Y. 566, whether a person was drunk or sober; whether a horse was a safe and kind horse. Sydleman v. Beckwith, 43 Conn. 13, where is quite a collection of instances where common observers, not experts, may give their opinions. In Stanley v. State, 26 Ala. 26, and Elam v. State, 25 id. -56, the allowance of this precise direct evidence of intemperate habits was sustained. The testimony here objected to was all given from the witnesses’ own personal observation, showing they .had opportunities of knowing the habits in respect to intemperance of which they testified. We find no error in the admission of the evidence.
The refusal of the second and third instructions asked by the defendants is assigned for error. The court had instructed the jury, at the instance of the defendants, that the persons named in the information must have been in the habit of getting intoxicated at the time of the sale, and that whether they were in such habit, was a question for the jury. It would have been inconsistent therewith, and improper, to have told the jury, as asked by the second refused instruction, that it was not sufficient to show that the persons had been frequently intoxicated, or to have given the court’s intimation, conveyed by the third refused instruction, that five occasions of intoxication would not justify the finding of habitual intoxication. These instructions were properly refused.
We see no reason for interference with the verdict, as not being sustained by the evidence.
The judgment will be affirmed.
Judgment affirmed.
