79 Mich. 457 | Mich. | 1890
This case comes to this Court on exceptions before sentence.
The information under which the respondent was con
It appears - that the respondent had carried on the saloon business at Alma, Gratiot county, during the year ending May 1, 1888, selling and keeping for sale spirituous, intoxicating, malt, brewed, and .fermented liquors, and continued to carry on the same up to the first Monday in May, 1888, when the people of Gratiot county, having voted upon the question submitted to them under the provisions of Act No. 197, Laws of 1887, commonly called the “ Local Option Law,” by their votes declared such law should have effect in that county. On May 18, 1888, the opinion of this Court was rendered holding the local option law unconstitutional and void. In re Hauck, 70 Mich. 396. It is claimed by the people that the respondent, on the morning of May 19, 1888, having learned through the public press that the local option law had been held invalid, at once opened his place of business, and not only sold, but there kept for sale, spirituous liquors, without having first paid the required tax, and obtained and posted the county treasurer’s certificate.
The respondent testified that he had been in the liquor business some eight or nine years, and carried on the business up to May 1, 1888, at which time he had quite a stock of liquors on hand; that after May 1, 1888, he quit selling liquors, and had them put in a room which he partitioned off, intending to sell again, if the law was declared void; that he was watching for the decision of
Respondent further testifies that after May 1, 1888, he paid no tax, and did not have the county treasurer’s receipt posted on May 19; that from May 1 he sold cigars and what he called soft drinks and wild cherry bitters, but no intoxicating liquors, and that the liquors which he furnished these parties on that day were not paid for; that he did not sell or keep for sale any intoxicating or malt liquors after the first Monday in May, and was not engaged in the business.. It appears, however, from his testimony, that he took out his government license about May 1 for the ensuing year; that he kept a bottle of whisky in the cupboard behind his bar, and when it was emptied he filled it again from liquors he had on hand in the room thus partitioned off; that he was also supplied weekly with cases of lager-beer, which were kept there in his saloon. The most of these liquors and the beer he claims to have drank himself, and that the remainder was taken to his own house.
The people called several witnesses who testified that in the afternoon of May 19, 1888, the respondent called them into his saloon, and furnished them whisky from a bottle, which they drank; that the respondent then said the law was “busted,” and he was now selling the pure old stuff. Mr. Willard, one of the parties called in there,
Eighteen errors are assigned, five of which are directed to the ruling of the court in the admission of the testimony of the witness Mary Hopkins, who was permitted to testify that a few days prior to May 19 she had a talk with respondent about selling her husband intoxicating liquors, and had forbidden him to sell to him, and had also given him written notice, some months prior, not to sell or furnish him liquors, to which request, a few davs prior to May 19, 1888, the respondent answered that he was selling him no more than other saloon men, and no more than he needed; that her husband was in the habit of getting intoxicated, and during the week previous to May 19 he was a constant visitor at defendant's place of business, and was intoxicated almost every day; and that he at times brought home whisky in a bottle.
The court was not in error in admitting this testimony. It tended to show that the respondent was unlawfully conducting the business on May 19. The situation of affairs from the respondent's own testimony was that he had for some seven or eight years carried on the business
If the testimony of the defendant is true, he. believed the act invalid; and it is quite evident that he had more care for the gains of the business than a desire to live within the spirit of the law. Mrs. Hopkins had occasion to watch the manner in which defendant conducted his business, and to mark the whereabouts and condition of her husband during this time, and her testimony had a strong tendency to show that, for some time before as well as on May 19, he was getting liquors at defendant’s place which occasioned his intoxication. The sales by defendant at any time after the first Monday in May were as unlawful as those made on May 19, and the fact that he made sales on such days, while not proof of a
Error is also alleged upon the ruling of the court in permitting the prosecution to cross-examine the defendant upon the manner of conducting his business before and after May 19, and also in permitting the prosecution to argue to the jury such circumstances as evidence of his guilt. We find no error in this. The defendant had •contradicted the testimony of the witnesses offered by the people, and taken the position on the tidal that after May 1, while he had carried on the saloon business, he •confined his sales to soft drinks and wild cherry bitters, except such liquors and beer, which were being carried to his place, which he drank himself. His story is quite a remarkable one, and open to grave suspicion as to its truth. He had offered himself as a witness, and it was upon his testimony that his counsel were asking an acquittal at the hands of the jury. The court permitted the prosecution very properly, on cross-examination, to go into his methods of conducting his business.
When the witness Willard was on the stand, he was permitted to state what the defendant had in his place of business; that he saw barrels and bottles in there. This is alleged as error. This evidence was competent, as showing that he had all the means and facilities for carrying on the business on the day in question.
Error is also assigned upon the refusal of the court to give defendant’s requests to charge. Such as were proper were covered by the general charge, and those not so covered were properly refused.
The remaining assignments of error that need, be noticed relate to the charge of the court as given. In this there is no error. The court confined’ the issue to
“A man has a right to treat his friends, if he does it for that purpose alone, and in good faith, and without intending to evade the laws; but he had no right to open his saloon, and treat different individuals, as a means of introducing the business he is about to engage in; neither for the purpose of advertising the business he is engaged in.”
This was certainly all that defendant could ask, under the circumstances. The information was not founded on the theory óf unlawful selling and furnishing, but for being unlawfully engaged in the business. There certainly was some evidence that, as soon as the defendant learned that the local option law was held invalid, he opened his place of business for the sale of liquors, even if he had not prior to that time continued to carry it on after May 1, the same as before, and the circumstances surrounding the whole transaction, and the conduct of the defendant, tend strongly to support the proof.
The conviction must be affirmed, and the court below will be advised to proceed to judgment upon the verdict.