85 Vt. 35 | Vt. | 1911
This case was argued and submitted at the November Term, 1910. Some time thereafter, at the instance of the State, the bill of exceptions was amended, and, at the request of the respondent, the case was held for re-argument on the amended exceptions. Subsequently, counsel submitted in writing their further suggestions and the same have been considered.
The respondent was convicted of furnishing intoxicating liquor contrary to law. He was the holder of a license of the fourth class, (to sell liquors to retail licensees) granted by the commissioners of the city of Burlington. The only offence relied upon by the State or shown by the evidence was the furnishing of two certain barrels of bottled Balantyne Ale to the Elks Club, so-called, of the city of Montpelier, on August 31,1909. The State’s evidence tended to show that this ale was shipped by the respondent from Burlington to the Elks Club at Montpelier. That the Club was not a licensee, and that Montpelier was at that time a no-license city. That the ale was duly received and used by said Club, and that it was the only Balantyne Ale had or used by the Club that year.
Two exceptions, only, are relied upon. One raises certain constitutional questions which are admitted to be the same as those involved in State v. Burlington Drug Co., 84 Vt. 243, 78
It is apparent that the evidence covered by this offer cannot be classed as cross-examination. The subject-matter thereof had not in any way been alluded to in the direct examination of the witness. It was new matter in the investigation of which the respondent’s counsel made the witness his own, — and this is so without regard to his practical admission to that effect. The ruling of the court, therefore, is to be tested by the sufficiency of the offer, and the rule governing a cross-examination has no. application. In order to afford .a sufficient predicate for an available exception to its exclusion, an offer must be sufficient in form and substance to show the admissibility of the tendered evidence. Without this, there will be no error in its rej ection. The-evidence embraced within the offer under consideration was wholly valueless unless it tended to contradict the evidence showing a delivery of the ale'by the respondent, or so to modify or explain the-transaction as to eliminate its criminality. If, in fact, this ale was-shipped to the Club from or by the Brewing Company evidence thereof was pertinent and important. If, on the other hand, it was actually shipped to the Club by the respondent, though in consummation of Fessenden’s promise and by some arrangement with him, it was an illegal furnishing, since it was not and is not now claimed that Fessenden was a licensee. Standing alone the offer fell short of showing the admissibility of the evidénce. It went far enough to show that the ale received by the Club was the ale promised by Fessenden, but not far enough to indicate that it was shipped or furnished otherwise than as the State’s evidence tended to show.
-There is no error and the. respondent- takes nothing. Let execution he done.