115 Me. 84 | Me. | 1916
This case comes up on exceptions. The respondent was found guilty by the jury under an indictment charging him with selling to one Joshua A. Marshall three gallons of cider in violation of the statute.
The sale was not denied, but the respondent contended that what he sold Marshall was vinegar and not old cider. That was the chief issue. The evidence is not printed, but from the charge of the presiding Justice it appears that there was testimony in behalf of the respondent that Marshall came to him and asked if he had any old cider and he replied “No, but he had some vinegar,” and Marshall thereupon bought three gallons of the liquor and took it away with him and drank it as a beverage.
The first excerpt from the charge, recited in the exceptions, is a clear and correct statement by the court to the jury of the respective contentions of the parties as to the issue involved in the case, the contention of the government being, that the respondent kept the cider with intent to sell it to be used as a beverage and not for other purposes for which cider might be used, and that it was sold to Marshall to be used as a beverage, all of which, if proved, would constitute the offense charged; and the contention of the respondent being, that he did not sell cider to Marshall but sold him vinegar. Plainly that statement does not disclose the expression of an opinion on any issue of fact arising in the case.
Having directed the attention of the jury to the testimony of Marshall, that when he asked for old cider he was told by the respondent that he had no cider but had some vinegar, which Marshall thereupon bought and used as a beverage, the presiding justice then instructed the jury that no offense was committed if it was vinegar that was sold, and admonished them to use their common sense in deciding the question whether the respondent did in fact sell Marshall cider or vinegar; and it was at that point in the instructions that the expressions recited in the second excerpt from the charge were used. The respondent particularly complains of the interrogatory expression used by the court, — “or was it old cider which the respondent may have called vinegar, perhaps with a twinkle in his eye.” But we think that expression was nothing more than a suggestion to the jury, for their consideration, of the possibility that even if the respondent, in answer to Marshall’s, inquiry for old cider, called what he sold him vinegar, nevertheless, he did not mean it, and so indicated to Marshall. And was not that suggestion the obvious inference to be drawn from the uncontroverted testimony respecting the sale, considered in the light of the circumstances disclosed? We think it was. There can be na>
Exceptions overruled.