85 Neb. 109 | Neb. | 1909
For the offense of selling intoxicating liquors to. Henry Southard, a minor, defendant Henry Seele, a licensed saloon-keeper at Sterling, was fined $25 and costs, and brought the case to this court as plaintiff in error. Complaint is made of the sufficiency of the evidence to sustain the conviction, but a careful examination of the record shows that the jury in that particular were justified in finding defendant guilty.
1." A new trial is demanded on the ground that the court below erred in giving the following instruction: “The court instructs the jury that in the sale of intoxicating liquors to minors the owner or keeper of the saloon is responsible for the acts of his servants and employees; and a sale by a servant or employee of a saloon-keeper is in law a sale by the saloon-keeper himself.” The doctrine stated does not appear to be in harmony with what was said by this court in an opinion by Chief Justice Sullivan in Moore v. State, 64 Neb. 557, where the following lan
Was the instruction quoted from the record prejudicial to defendant? He and a number of his bartenders testified that no sale to Southard had been made, as charged in the
2. Defendant insists the judgment below should be reversed for error on the part of the trial court in giving the following instruction: “If you find from the evidence beyond a reasonable doubt that a sale of intoxicating liquor was made by the defendant to Henry Southard, minor, as alleged in the complaint, then it is not necessary for the state to prove the intent or motive of the defendant in making such sale; neither is it necessary for the state to prove that such sale was made to the minor knoAvingly. A liquor dealer is bound to know that the person he sells liquor to is not a minor, and ignorance of the age of the
3. Complaint is made of the refusal of the trial court to give at the request of defendant an instruction relating to the credibility of Southard as a witness. The objection is without merit, since the credibility of all the witnesses was by a proper direction left to the jury.
4. Paul Barnhouse, also a minor, was a witness for the state. After testifying he was in defendant’s saloon with Southard July 4, he was asked if he purchased liquor there at that time, and answered: “Yes.” Though defendant made no objection to the question, he moved to strike out the answer after another question had been asked. The court overruled the motion, saying: “You did not object to it.” This ruling is also attacked. There is nothing to show that defendant was prevented from making a proper objection when the question was asked. According to correct procedure, a party should not wait for a favorable reply to a question, and subsequently move to strike out the answer in the event that it disappoints him. To hold. there was prejudicial error in refusing to strike out the answer under consideration would be an unwarranted interference with the discretion of the trial court in controlling its own proceedings.
5. Defendant was a witness in his own behalf. After stating on cross-examination that Barnhouse, a minor,was in the saloon July 4, defendant was asked: “Now, he purchased liquor there, did he?” An objection to this question was overruled, and this too is assigned as error. The question called for testimony as to whether defendant
Affirmed.