63 Neb. 115 | Neb. | 1901
The defendant in the court below was prosecuted for selling intoxicating liquors without having a license therefor as required by law. The information contained several counts of alleged different sales, on two of which he was convicted after a trial to the court and jury on a plea of not guilty. He was adjudged to pay a fine of $200 on one of the counts on which he was found guilty, and $100 on the other, and the costs of the prosecution. To secure a reversal of the judgment thus imposed he brings the case to this court by proceedings in error.
It is practically admitted that the defendant made the sales charged and the defense interposed that the liquor sold is what is denominated “malt mead,” being a “soft” or “temperance” drink as expressed by him, and non-intoxicating. He was engaged in conducting “a temperance saloon,” selling, as is contended, only non-intoxicating drinks, cigars, etc. Among the refreshing drinks he dispensed to his thirsty patrons was a liquor put up in quart bottles, and labeled “Malt Mead,” which he claims he sold at the time the unlawful sales charged were made, and that such liquor was not intoxicating, and did not contain in it a percentage of alcohol sufficient to intoxicate. It also appears from the evidence that besides the malt mead, which was contained in bottles labeled as such, the defendant dispensed liquors from unlabeled quart bottles of which he had a barrel or more, and which it was testified was the liquor sold which was charged -in the information, and that it was beer, and intoxicating. At the time of the
Of the alleged errors complained of it is contended the trial court erred in overruling a motion for a continuance, presented by the defendant at the term of court at which he was tried and convicted. The term began December 17, 1900. On September 17 prior thereto the defendant was arrested, charged with the offense for which he was tried, and after a preliminary hearing was required to enter into a recognizance for his appearance in the district court on the first day of the next term to answer such charge. The motion for a continuance was based on the allegation that H. W. Wiley, of Washington, D. O., and Dr. P. Fisher, of Milwaukee, Wis., were important witnesses on defendant’s behalf ; that they were practical chemists, and would testify that the kind of beverage which defendant was charged with selling contained less than one and one half per cent, of alcohol, and was not intoxicating; that he knew of no other witnesses by whom he could prove the same facts, and that since the preliminary examination he had written to various parties for the testimony set out, and did not find out until December 15 the names and locations of the witnesses mentioned; that the witnesses, if given an opportunity to analyze malt mead, would testify that it was
In the motion for a new trial one of the grounds assigned was newly discoArered evidence. The shoAAdng in support thereof consisted of what are purported to be the depositions of the witness Dr. P. Fisher heretofore mentioned, and another, holding a subordinate position, as analytic chemists of beers malted by the Pabst Brewing Company, of Milwaukee, Wis., in which they testify to the manufacture by that company of a liquor called “malt mead” and that it is non-intoxicating. What has been said regarding the materiality of the testimony spoken of in the affidavit for a continuance applies equally well to the motion for a new trial on the ground of newly-discovered evidence. As before stated, the jury were justified in finding that the liquor sold was not malt mead and was intoxicating; and, even though it be conceded that malt mead Avas a non-intoxicant, that fact need not necess.arily and probably would not change the result in the event of a retrial. This of itself is sufficient to sustain the action of the trial court in overruling the application for a neAV trial on that ground. Another and insurmountable obstacle presents itself, which will not permit defendant’s contention being-sustained with respect to the ruling complained of, and that is, the affidavit in support of the motion is not incorporated in the bill of exceptions, but is found in the transcript of the record certified to only by the clerk of the district court, of which it legitimately forms no part. The
It is next argued that error was committed in the. ruling-of the trial court on a challenge by the defendant to the array of jurors selected for that term of court and in overruling the challenge so made. The objection to the list of names or panel of jurors selected to serve during that term of court was based on the claim that in selecting the names from which to draw those required -to be summoned to serve as jurors during the regular term of court the county commissioners selected the names of several persons who had served on the regular panel or as talesmen within two years next preceding the term at which the defendant was tried, and that of those drawn to serve at such term there were but nineteen who had not previously and within two years performed jury duty in that court. The objection is untenable. While the fact of the service of a juror within two years in the same court is a good ground for challenge for cause, and while it is the duty of the county commissioners so far as is practicable to select those against whom this objection can not be urged, the fact that five of those thus selected are disqualified to serve if objection be interposed on that ground is no sufficient reason for sustaining a challenge to the entire panel.
It is also contended that the court erred in admitting the testimony of an expert witness, a chemist, Avho testified in behalf of the state as to the result of a chemical analysis of the liquor contained in unlabeled bottles'found in a barrel in defendant’s possession at the time of defendant’s arrest and the seizure of the liquors spoken of, and AA'ho testified that the contents of the bottle analyzed was a heavy beer, containing about five per cent, of alcohol, and Avas intoxicating. It is claimed there is no evidence showing any relation or connection betAveen the liquor analyzed and that sold by defendant some fifteen days prior to the time of seizure. The liquor appeared to be the same and
It is also argued that the trial court erred because it failed to give to the jury a cautionary instruction with reference to their consideration of the testimony of certain witnesses on behalf of the state who had been employed as detectives for the purpose of securing evidence of defendant’s violation of the law by selling intoxicating liquors without being licensed so to do. Since no request was made for an instruction of the nature mentioned, no error was committed because of a failure to instruct on that point.
Some other objections are presented and argued which have been examined and found not well taken, and which are not deemed worthy of a more extended discussion. .
Lastly, it is argued that the evidence is insufficient to support the verdict. The sale charged was admitted, and there is direct and positive evidence that it was an intoxicating liquor, that it was beer with the intoxicating qualities commonly attributed to that liquor, and that it did in fact intoxicate those purchasing and using it. While there was a determined effort to make it appear that the liquor sold was-what is termed “malt mead,” which is, perhaps, a milder drink than beer is commonly regarded to be, and while there is a conflict -in the evidence on that point, and whether malt mead is intoxicating, it was for the jury to determine the credibility of the several witnesses and the weight to be attached to the testimony of each and all of them; and their finding will not be disturbed merely because the evidence is conflicting. Their verdict is supported by ample competent evidence, and can not rightfully be overturned.
Affirmed.