State v. Foster, 23 N.H. 348

State v. Foster

23 N.H. 348 | Superior Court of New Hampshire | 1851

Eastman, J.

The respondent relies upon three grounds, upon which to set aside the verdict returned against him. The first is, “ because there was no evidence that the defendant was not licensed to sell.” It is true, that the indictment contains a negative averment. It alleges that the defendant, not being a licensed taverner, nor having a license to sell wine or spirituous liquors, on the twentieth of August, 1851, sold five quarts of spirituous liquors, to John Jefferson. And it appears by the case, that there was no negative evidence, that the defendant had not a license. In many cases, negative averments and allegations, being of the essence of the offence, or of the ground of action, must be proved. The party, however, is not ordinarily required to furnish that full and satisfactory evidence, which is necessary when the averment or allegation is affirmative. Rut where the subject matter of a negative averment relates to the defendant, personally, or is peculiarly within his knowledge, the averment need not be proved by the prosecutor, and if relied upon by the defendant, he must himself prove it. Sheldon v. Clark, 1 Johns. Rep., 513 ; State, v. Morrison, 3 Devereaux Rep., *352299; Gening v. The State, 1 McCord, Rep., 573 ; State v. Godfrey, 11 Shepl. Rep., 232; Rex v. Turner, 5 M. & Selw., 205 ; 1 Greenl. on Ev., % 79. Such a rule is no hardship upon a defendant. -The evidence being peculiarly -within his knowledge and possession, he can show it at once, without any inconvenience. If this respondent had been licensed, he could readily have produced the license ; while to prove the negative, the government would have been compelled to summon the town clerk to appear with the records of the town.

Under the statute, as it stood prior to 1849, it is believed that this question was considered and decided, and that it was then held that the government need not prove the non-existence of the license. It is now suggested, that the change made by the statute of 1849, may perhaps present the question in a different aspect. Rut on comparing the two[acts, we find nothing that makes or requires any alteration in this rule of evidence. The first section of the act of 1849, provides that the selectmen- of the respective towns shall license one or more suitable persons to sell wine and spirituous liquors, for medicinal, mechanical, and chemical purposes, and for no other use, or purpose. Pamp. Laws, 847. This act also repeals the fifth section of chapter 117 of the Revised Statutes, and so much of the sixth section as is inconsistent with the act. These sections gave the selectmen power to license any retailer to sell wine and spirituous liquors in any quantity not less than a pint, to be sold delivered and carried away. The change, then, is simply a restriction upon the selectmen in the nature of the license to be granted by them. It affects, in no way, the rules of evidence.

The second position of the respondent is, that “ there was no competent evidence that Benjamin Foster had authority from the defendant to sell the brandy.” But in regard to this point, we think there cannot be any doubt. The evidence was entirely competent for the jury to find Benjamin Foster to be the agent or clerk of the respondent, for the sale of all articles in the store. He testifies that he sometimes tended the store for the defendant, as his clerk or agent; that he had sold rum for him; that there was rum on tap in the cellar, and also brandy on tap *353in a cask ; that the defendant went to his field, and did not come back till night, and that the witness was left in charge of the store and stayed there till the defendant came back. It is true that he says, that he did not recollect selling brandy, but when subsequently giving an account of the sale of the brandy; for which this indictment was found, he does not give as a reason for hesitating to sell the brandy that he was not authorized to sell it, but that he did not like the looks of the person applying for it, and apprehended that the brandy might be purchased for the purpose of laying the foundation for a prosecution. It probably never occurred to the witness, nor to the respondent, till after this indictment was found, that the witness had not just as much authority to sell the brandy, as he had to sell the cloth upon the shelves, or the tea in the chest, or the molasses, or the rum. It is very seldom the case, that a clerk or agent in a store, receives a written appointment, prescribing his duties. And it is by no means necessary that he should. It is sufficient if there be satisfactory evidence of the fact of employment; which may be inferred from the relative situation of the parties, and the nature of the employment, without proof of any express appointment, either written or verbal. 2 Kent’s Com., 613 ; Shaw v. Nudd, 8 Pick. Rep., 9 ; Hooe v. Oxley, 1 Wash. U. S. Rep., 19 ; Story on Agency, 45 ; 2 Greenl. Ev., 60. Had the respondent intended, or desired that the witness should be restricted in regard to the sale of the liquors, he should have so ordered. But not having done it, and the evidence having been left to the jury, and they having found the agency, we can discover no reason for disturbing the verdict upon this objection. If it were necessary for the respondent to establish the sale of any goods, made by Benjamin Poster, for the purpose of recovering pay therefor, he would at once resort to him or his clerk, or agent, to prove the fact; and the evidence submitted upon the trial in this case, would be entirely competent for that purpose. So also was it competent to prove the allegation of sale in this indictment.

But the respondent further contends that the verdict should be set aside, “ because the witness was compelled to testify to facts having a tendency to criminate himself.” Where the an*354swer to a question will expose the witness to a criminal prosecution, or to any kind of punishment, the authorities are very clear that he is not bound to answer. He is not bound to disclose any facts which will subject him to a criminal prosecution. Amherst v. Hollis, 9 N. H. Rep., 107 ; State v. K., 4 N. H. Rep., 562; 1 Greenl. Ev., § 451; 1 Phil. Ev., 276 ; Low v. Mitchell, 6 Shepl. Rep., 272. But the privilege is that of the witness, and not of the party, and it lies with the witness to claim it or not, as he may choose. McCarty v. Bond’s admr’s, 9 Lou. Rep., 351; Treat v. Brown, 4 Conn. Rep., 408 ; Thomas v. Newton, 1 Mood. & Walk., 48, note 6. If the witness waives his privilege, and answers the questions, even though the answers may show that he is guilty of an infamous crime, yet he will not thereby be rendered incompetent. The answers go only to his credibility. 1 Stark. Ev., 144; Orr’s case, 5 C. H. Recorder, 181; 17 Mass. Rep., 537. And where a witness discloses part of a transaction, in which he was criminally concerned, without claiming his privilege, he is then bound to go forward and state the whole. State v. K., 4 N. H. Rep., 562; Brown v. Brown, 5 Mass. Rep., 320 ; East v. Chapman, 1 Moood. & Walk., 46 ; Dixon v. Vale, 1 Carr. & Payne, 278. Especially ought this to be so, where the facts disclosed are in favor of the party calling him. In this case, the witness had testified to facts tending to show that the testimony of the government’s witness was untrue. He also testified, that he had sold rum for the respondent at the store, but did not recollect ever to have sold brandy. But when the question was put to him directly, if he did not himself, that afternoon, after his brother had gone away, sell Jefferson any brandy, he then for the -first time claimed his privilege. This he could not do; having told a part of the truth he should disclose the whole.

Judgment on the Verdict.