16 Wash. 590 | Wash. | 1897
Lead Opinion
The defendant was the owner of a drug store in the town of Goldendale in Klickitat county, and was convicted of selling intoxicating liquors to one Oscar Nelson without having any license therefor. The indictment alleged the sale as on the second day of April, 1896, and the trial was had in June following. The prosecution offered evidence to show a sale and rested, without attempting to prove that the defendant had no license, and one of the points urged on this appeal is that the burden of proof was on the state to show, at least prima facie, that the defendant had no license. The authorities are in conflict upon this proposition, but the greater number of cases seem to hold that this burden should be placed on the defendant (Black, Intoxicating Liquors, § 507; 1 Greenleaf, Evidence, § 79), and this undoubtedly is the more convenient rule, for, if the defendant has a license, it is imposing upon him no hardship to require him to make proof of it, and he has the same right of recourse to the public records to prove the issuance of it that the prosecution has, and in a locality where many licenses are issued, and the record of the issuance thereby rendered voluminous, it might be somewhat of a hardship on the state to require the prosecution to show from such records that no license had been issued to the defendant.
It is next contended that it was error to allow the prosecution to introduce evidence to show a sale of blackberry brandy by the defendant to Nelson, the principal witness for the state. On this point the record is as follows :
“ Question: What kind of liquor have you bought there ? Answer: I bought blackberry brandy there.
*593 “Q,. State whether or not you ever bought any whiskey ? ”
There was no attempt upon the part of the prosecution to pursue the question of the sale of any blackberry brandy, and there was no motion made by the defendant to strike the answer. The efforts upon the part of the state were directed towards showing a sale of whiskey by the defendant to said witness, and, without entering into any consideration of the question as to whether blackberry brandy is an intoxicating liquor or not, we are satisfied that no error is disclosed by the record on this proposition.
It is next contended that the motion for a verdict in favor of the defendant when the prosecution rested, as well as a request for an instruction to the jury to find a verdict for him at the close of the case, should have been granted. These questions present some difficulty. The testimony as to the sale was confined to two witnesses, Nelson and the defendant. Answering the question as to whether he ever bought whiskey of the defendant, and some further questions thereon, Nelson testified:
“Answer: I have called for whiskey; I couldn’t swear whether or not I got whiskey.
“Q. You called for whiskey ? A. I did.
“Q,. When was that? A. I couldn’t tell you the exact time.
“ Q. Well, come as near to it as you can. A. That is a thing I couldn’t hardly swear to. It might have been three months ago, it might have been six or seven months. It might have been longer since I called for whiskey.
: “ Q,. What is your best judgment about what time it was ? A. It has probably been quite a while ago, I should think, since I bought the whiskey there.
“ Q. By the Court: You are asked, what is your best*594 judgment as to the time when you bought the whiskey there? A. It has probably been six months ago, about six months ago since I bought whiskey.
‘ ‘ Q. How did you get it ? A. I got it at fifty cents a bottle; just paid half a dollar for it.
“ Q,. Who did you get it from ? A. Mr. Shelton.
“ Q,. Do you know what the quantity was that you got ? A. No, sir, I do not.
- “Q,. What kind of a bottle was it ? A. One of them round flasks.
“ Q. You got a round flask of something; what did you think it was ? A. I took it for whiskey.
“ Q. You thought it was whiskey ? A. I did.
“ Q. What did you do with it ? A. Used it.
“ Q. What for ? A. Drank it.—I drank it.
“ Q. Where was it that you got this ? A. At O. M. Shelton’s drug store.
CROSS-EXAMINATION.
“ Q. This time that you got what you have alluded to as whiskey, might have been more than a year ago, might it not? A. It might have been, yes, sir. I couldn’t positively swear to that. I wouldn’t want to swear to it.
“ Q,. You couldn’t tell whether it was within a year or not; whether it was in the winter time or in the summer time ? A. I could not.
RE-DIRECT EXAMINATION.
“ Q. I understand you to say in your cross-examination, that it might have been over a year ago that you got this whiskey ? A. That I got the whiskey ?
“ Q. Yes, sir. We want you to, say", when, to your best recollection was it that you got this ? A. When I got this whiskey; I couldn’t say exactly when I got this whiskey.
“ Q. I am asking you to testify to your best recollection ? A. It might have been six or eight months; I presume it has been that long since I got whiskey there; it might have been a little longer.
“ Q. What is your best judgment about when it was; how long ago; when do you think it was ? A. It has*595 been at least six months ago since I got any whiskey there at Mr. Shelton’s.
“ Court: State what your best judgment is as to the time you got that ? A. About six months.”
The last question to him upon this point was upon Te-cross examination, and was as follows:
“ Question: Now, Mr. Nelson, as I understand you, you say that you won’t swear whether it was more than a year ago or not ? Answer: No, sir, I will not.”
This was the only witness examined upon the part of the prosecution. All of the testimony will not be .given, nor many of the objections interspersed, but such parts as are material to the points considered will be stated. The defendant testified squarely that lie never sold Nelson any whiskey at any time. There was further testimony, some of which will be hereafter given, to show that he had at one time bought whiskey of a Mr. Richards, who was employed by the defendant in the drug store, and to show that all sales of intoxicating liquors were entered in a register kept at the •store, and that there was a controversy as to whether .any sale had been made to Nelson within a year prior to the finding of the indictment. Considering the apparent fact that the principal witness was, as is often the case in such prosecutions, an unwilling witness for the state, also that he had testified positively that he .had bought whiskey of the defendant, and, when held •down closely, had said that his best recollection was that it was about six months ago, and the further fact that any sale of whiskey to him at any time was diTectly contradicted by the defendant, we think there was testimony to show a sale of whiskey by the defendant to Nelson within a year prior to the finding of the indictment, sufficient to go to the jury, and ■that there was no error in refusing the motion for a
It is next contended that the court unduly restricted counsel for the defendant in cross-examining Nelson with reference to the purchase of whiskey he had. made from Mr. Richards. On cross-examination the witness was asked:
“ Question: Didn’t you get this which you call whiskey from Mr. Richards ? Answer: I did not.
“ Q. Didn’t you get some whiskey from him? A. I did, at one time.
Q. “ How long ago was that ? A. It was a little-over a year.”
After this answer was given, an objection was made to it as immaterial, which was sustained, but the answer was not stricken, and the further question was asked:
“ Question: It might be within a year that you got this from Richards ?”
This was objected to by the prosecution and the objection was sustained and excepted to. We are of the opinion that this was error. But two purchases of whiskey at the drug store in question had been testified to by the witness, one from the defendant and one from Richards. The recollection of the witness as to the time he purchased the whiskey of defendant is very uncertain, and it was necessary for the prosecution to establish the fact that it was within a year prior to the finding of the indictment,, and testimony tending to show that it was more than a year prior thereto was legitimate as a defense to the action. The rule with regard to cross-examination upon collateral facts rests largely in the discretion of the court. But some latitude must be given, and in support of this question counsel for the defendant stated that they asked it for the purpose of testing the
The next errors claimed are with regard to questions asked the defendant by his attorney relating to the register of sales kept at the store. The witness for the state had testified on cross-examination as follows :
“ Question: Did you sign the poison register when you claim you got this [the whiskey] from Shelton. Anstuer: I did.
“Q,. You signed it in your own handwriting, did you? A. Yes, sir.
“Q,. Now this poison register stated what you got this liquor for, did it? A. No, not exactly; it stated that I got it for medicine.
“ Q. And you claim you got it for medicine ? A. I do.
“Q,. You say you signed the poison register? A. I did.
“Q,. In your handwriting? A. Yes, sir.
“ Q. You are perfectly positive about that, are you ? A. Yes, sir.”
“ Q,. The poison register stated your name and the amount of liquor you got and what you paid for it? A. Yes, sir. It stated my name.
“Q,. And the purpose for which it was used? A. Yes, sir.”
Upon this point the defendant testified in his direct examination as follows:
*598 “Question: I want to ask you if this man Nelson ever signed the poison register in your store ? Answer: No, sir.
“Q,. For any intoxicating liquor? A. No, sir, he did not.
“ Q,. Is it there for any purpose; did he ever sign that register for anything? A. I think his name went on once for poison; Paris green, something of that kind.
“ Q. It was Paris green that he got ? A. I guess it was, yes, sir.
“Q,. Do you know how long ago that sale was for Paris green ? ”
Objected to on the ground that it had nothing to do with this case. The objection was sustained by the court.
Upon the re-direct examination of the defendant, the following occurred:
“Question: Do you keep a book in the drug store; a registry book in which is entered a record of sales named in the statute,—including spirituous and malt liquors? Answer: Yes, sir.
“Q. Does that record state the names of the persons to whom these liquors were sold? A. Yes, sir.
“Q. The amount? A. Yes, sir.
“ Q. What it is used for ? A. Yes, sir.”
Here the prosecuting attorney objected to this line of examination and the court sustained the objection, remarking that it was immaterial. Both rulings were excepted to. No further attempt to prove anything with reference to the register was made by either side. The register itself was neither offered by the defense nor called for by the prosecution. With reference to the last ruling, that which took place indicates that counsel for the defendant was led to believe, and we think he was justified in assuming, considering the scope of the objection, it being to
Reversed and remanded.
Anders and Reavis, JJ., concur.
Dissenting Opinion
(dissenting.)—I concur in the result, but not in the holding, that the burden was upon the defendant to prove his license. Decisions almost without number might be referred to as bearing upon this question, and it is probably true that in point of number they support the rule laid down in the opinion of the majority, but I think the trend of modern authority is the other way. The rule was founded in necessity, and the impossibility in many cases of the government being able to make proof of the nonexistence of a license. In the earlier periods when mere private licenses were generally in vogue the license itself constituted the sole and only evidence of its existence, and the difficulty of proving a negative justified the adoption of the rule that where the subject matter of a negative averment was peculiarly within the knowledge of the other party, the averment was taken as true unless disproved by that party, and this was the extent of the limitation. 1 Greenleaf, Evidence, § 79.
But under our statute on the subject a public record is required to be kept for all liquor licenses, and the question of whether a particular person has or has not a license is clearly not one “ peculiarly within the knowledge” of such persons but can readily be determined from the record. Therefore, the rule has no application to existing conditions in this state. The necessity for its application does not exist. If the indictment in this case had failed' to charge the non-existence of a license, the other acts which it