91 N.Y.S. 1004 | N.Y. App. Div. | 1905
The People’s witnesses, Beach and Roach, testify that they went into the barroom on September 22* 1903, where 'the defendant was tending, and asked what the defendant was selling there; that the defendant replied that he sold soft drinks, naming some, and among them a drink called “ Malt Rose.” .The witnesses asked, for the latter drink, and a glassfull was poured out for each; that they drank part, and that Beach put a part from his glass into a Small bottle he had there. This change from glass to bottle was-made while the defendant had for a moment-stepped into an adjoining billiard room that was also under his charge. .They-then paid
This was substantially the case made against the defendant.
The defendant testified that the witnesses asked for the. “ Malt Eose,” and that he sold and delivered to each a glass thereof; that each drank part, and he threw away what was left, washed the glasses and put them away.' He denies emphatically that either of the men put any of his drink into a bottle or carried any of it away, and he denies that he was called from the bar while they were there. He, and also one of the proprietors of the hotel, testifies that at that time there was no lager beer at the hotel.
During the trial the defendant’s counsel called Prof. Williams, a chemist, and proved by him that on January 14, 1904, he obtained a sample of Malt Eose from the Albion House bar for the purpose of analysis. He also testified that on several occasions prior to that date, one of them being October ninth, he had analyzed the liquor commonly called and sold as “ Malt Eose.” Defendant’s counsel then asked the witness what the analysis showed. This evidence was objected to and excluded under the defendant’s exception. The defendant then stated that he proposed to connect it and show it was the same kind of Malt Eose, and was the -same thing that was sold to- those two witnesses, to which the court replied that he could not “ prove any analysis of liquor obtained in January as bearing on liquor in September.” It also appears from a further" discussion of its admissibility, at folios 111 and 112 of the appeal book, that-the court considered it not pertinent to any issue that was really in the case, for tlie reason that, inasmuch as the defendant denied specifically that any of the liquor that he sold was ever carried away by Beach and Boaeh,'none could have 'been analyzed by Prof. Priest. The trial court substantially held that unless some of the liquor sold by defendant had been taken away by Beach there was no proof of . what that liquor was, and hence no violation of the law was shown. But that if defendant’s statement was wrong in this particular, and some of the liquor was taken to Prof. Priest and analyzed by him,
But. it seems to me that there was a further question presented by the evidence. The plaintiff’s witnesses testify that they asked the defendant to. give" them “ Malt Rose,” and the defendant testified that he did so. Concede that some of that very drink was thereupon delivered to Prof. Priest, whether or not it was "correctly analyzed and showed five and forty-three one-hundredths per cent of alcohol is still a question to be determined. The defendant’s counsel did not concede that if the drink which the defendant sold was the one that. Prof: Priest analyzed, it was a correct analysis. His statement that he "could not disputé -Prof. Priest’s analysis was because he had no satisfactory proof of where that liquor came from. But he insisted that.if it was the drink that the defendant-sold, viz., “ Malt Rose,” it did not contain alcohol enough to render its sale a violation of -the law. He asked, therefore,, to show what an analysis of the drink “ Malt Rose ” showed-.it to be composed of.
It sufficiently appears, I think, that there is such a drink sold in the market under that name ; and from what Prof. Williams testified, it is fair to infer that it is made from some definite, receipt, or formula. He had - analyzed it several times, and speaks of it as a, known article of commerce. It also appears elsewhere in the case that it was such an article of commerce. Under such circumstances, he should have been allowed to testify what he found it to consist of. If his different analyses varied so much that it was plain that a specimen procured in January was no criterion of what a specimen in September would contain, then they would be ineffective to discredit Prof. Priest’s analysis, or to discredit -the claim that he had received a portion .of what the defendant sold. But if various analyses showed that the constituents in the samples used were the-same or substantially so, I am of the opinion that the defendant had the right to prove the analysis of fa brand similar to that which he testified he sold as tending to discredit either the accuracy of Prof.
The defendant claims that what he sold the People’s witnesses was “ Malt Rose ” and that it was an inoffensive drink containing very little, if any, alcohol. It seems to me he had the right to prove both of these facts. He might prove the first by his own oath, but still he might be short of a defense until it appeared what the drink consisted of. The evidence which he offered to prove this latter fact might have established it, and it was, therefore, error to exclude it.
For this reason the judgment should be reversed and a new trial should be ordered.
All concurred ; Smith, Chase and Chester, JJ.¿ in result.
Judgment of conviction reversed and new trial ordered.
