72 Vt. 102 | Vt. | 1900
I. It appeared that on July 4, 1896, the respondent’s dwelling house was searched ; that he was arrested upon a complaint for owning, keeping and possessing intoxicating liquor at his dwelling house, with intent to sell, furnish and give away the same in violation of law, and that he was tried and acquitted.
One White, a witness for the state, testified that about one o’clock in the afternoon of that day he and a companion each obtained a glass of beer of the respondent, and later on the same day obtained another glass.
The evidence on the part of the respondent, which was uncontradicted unless by White’s testimony, was that the search for liquor on that day was continued from before White’s first visit until after his second visit, and therefore the respondent requested the court to instruct the jury not to consider the evidence of offenses committed by him on that day.
The judgment of the justice’s court was conclusive that the respondent was not keeping liquor for unlawful sale when the search was made, but for anything that appears in the case the sales to White and Nugent may have been after the search and arrest. The testimony of the respondent and his witnesses, though uncontradicted, only tended to show that all the sales to White and his companion were before the search, but whether they were in fact before or after was a question of fact for the jury. The case does not state whether the trial was held on the day of the arrest or subsequently.
As the respondent kept liquor and beer in his house for his own use, he may have made unlawful sales to White and Nugent, after the arrest, from those liquors, or he may have obtained and sold other liquors to them. His wife may have been the keeper and he the seller as her agent either before or after the arrest. These were questions of fact, and the court properly denied the request.
II. The respondent claimed that he could not be convicted of any sales made by his wife on July 4, 1891, for the reason
The state’s evidence tended to show a sale by the respondent at his house on the evening of that day, a sale at the same time and place by the wife in his presence, and a sale by the wife when he was-not present. It was a question of fact whether these three sales, if made, were included in the fifteen sales which the wife pleaded guilty to having made.
The judgment against the wife would have been a bar, even in a subsequent prosecution against her, only as to the offenses specified in the proceedings upon which the judgment was rendered. As to other offenses she might have been proceeded against as though they had been committed subsequent to that judgment. Y. S. 4471.
If the sale by the wife in the respondent’s presence was by his direction then it was his act. The sale by her in his absence may have been his act through her agency, therefore the instruction of the court was correct that the respondent may have been guilty of the acts of the wife.
The charge is not recited in full, but it doubtless explained in what circumstances the respondent might be guilty of unlawful sales by his wife.
Judgment that the respondent takes nothvng by his exceptions ; judgment a/nd sentence.