Keiser v. LinesKeiser v. Lines
- Reporters:
- Before:
- Biddle
Aрplication by the appellant, under section 3 of the act of March 17th, 1875, (1 R. S. 1876, p. 869,) to obtain liсense to sell intoxicating liquors.
*432A remonstrance was filed against the application. The case was heard before the board of county commissioners, and the license denied.
Thе applicant appealed to the circuit court, wherein the ease was tried by а jury, and the license again denied. Appeal to this court.
Several questions are presented for our decision.
In empanelling the jury, Jesse Swain was сalled as a juror, to whom the appellant propounded the following ■questions touching his competency to serve:
“ Have you formed or expressed an opinion as to the mеrits of this case?”
To which the juror answered:
“Ho; but I am opposed to granting license to any person, under any circumstаnces.”
The appellant then asked the juror the following question :
“Are your prejudices such that you would not be willing to render a verdict granting license, although the testimony should authorize it under the law ? ”
To this question the appellees objected, without рointing out any grounds of objection. The court sustained the objection, and the appellаnt excepted.
The appellant then asked the juror the following question:
“Are you willing to execute the law, as a juror, authorizing the granting of license to retail intoxicating liquor ?”
An objection was made by the appellees to this question also, but nо grounds of objection were pointed out. The court sustained the objection, and the aрpellant excepted.
Another similar question was propounded to the juror by the appellant, an objection made to it by the appellees, without alleging any ground of objeсtion, the objection sustained by the court, and exceptions reserved by the appellant.
Upon this evidence, the appellant challenged the juror *433for cause, but tbe court denied the challenge, and the appellant excepted.
We think the challenge for cause should have been allowed. The answer of the juror, that he was “ opposed to granting license to any person, under any circumstances,” was equivаlent to saying, that he was opposed to granting license to the appellant, if he estаblished his right to obtain license according to law. That a juror, •entertaining such an opinion, was incompetent to sit in the case, is a proposition which seems so plain to us that we think reasons given in its support would be thrown away. The independence, freedom from interest, impartiаlity, and the unbiased opinion of jurors must be secured to all, or justice can not be administered.
At thе close of the evidence, the court, of its own motion, instructed the jury as follows:
“If you find from the еvidence given in the cause, that the applicant, John W. Keiser, was guilty of selling intoxicating liquor in violation of law, before the making of his application for license in this case, and has, since the making of such application, sold intoxicating liquor in violation of the law, such selling would be an immorality and unfitness of the applicant to be entrusted with license, and you should find against him.”
To thе giving of this instruction, the appellant reserved his exceptions properly.
We think this instruction is erroneous. It plainly tells the jury what evidence was sufficient to defeat the application. The immorality of the act mentioned in the instruction, and the fitness or unfitness of the applicant to оbtain license, were questions of fact for the jury to decide from the evidence before them, and with which the court had no right.to interfere.
The court, also upon its own motion, further instructed the jury, as follows:
•“ If he sold intoxicating liquor to Scott Toby or Levi *434Bond, in a less quantity than a quart at a time, he having no license from the hoard of cоmmissioners of Henry county to sell in less quantities than a quart at a time, or if he sold the same to be drunk, or suffered it to be drunk, in his house, out-house, yard, garden, or the appurtenances thereto belоnging, such selling would be in violation of law, and would [be] an immorality and unfitness of the applicant to be entrusted with license.”
To the giving of this instruction the appellant reserved his exceptions.
This instruction is erroneous, for the same reasons which rendered the one just noticed, erroneous, аnd for the further reason, that the sale of intoxicating liquor, without license, by a less quantity than a quart at a time, is not necessarily unlawful. There are exceptions to the rule. If we were to hold, thаt the instruction expresses the law, it would make the sale of medicine containing intoxicating liquоr in a less quantity than a quart, though prescribed by a physician and necessary for the patient, an immoral act. It can not he properly stated, as a legal proposition, that the sаle of intoxicating liquor is an immoral act. Surely, the learned judge, who gave the instruction, never intеnded to state to the jury what the language of the instructions plainly means.
The judgment is reversed, with costs, and cause remanded, with instructions to sustain the motion for a new trial, and for further proceedings.