State v. Spaulding, 60 Vt. 228

60 Vt. 228 | Vt. | 1887

The opinion of the court was delivered by

Taft, J.

I. Did the court err in ruling that the respondent bad lost bis right to peremptorily challenge the juror, Hitchcock, by having once accepted him? The panel had not been sworn, the jurors had been separately examined and the respondent had said he had no objection, or no further inquiry. Whether that amounted to an acceptance of the jurors, may be questionable ; but even if it did, we think the right to peremptorily challenge jurors given by E. L. s. 1653, continues until the jurors are sworn. At common law each juror was separately called and when accepted was sworn, and this was continued one by one, until the panel was full; and such is the practice in some of the American States; but in this State, it has been otherwise, no doubt to avoid the needless repetition of the oath. We hold that the right to challenge peremptorily continues until the juror is sworn, and this is the only question in respect to the jury before us.

II. The court permitted the prosecution to give in evidence a copy of the assessment rolls kept in the office of the collector of internal revenue in this district in connection with the testimony of the witness Norton. The latter was not in any manner connected with the office, but he testified that he had examined the assessment rolls and records in the office and made said copy. We think no question could successfully be made but' that it would be proper to show that the respondent had obtained an United States license for the sale of liquor. It has been held pertinent evidence upon the question of intent to sell, and we think it equally admissible upon the question of whether the respondent did sell; for if he had the intent to do an act, it would be more probable that he did it than it would be if he had no such intent. In State v. Intoxicating Liquors, 44 Vt. 208, it was held that the original assessment rolls and records in the assessor’s and collector’s office were competent evidence to prove the fact of payment for a liquor license. We think this case full authority for holding that the records in the collector’s office were competent evidence ; and that they were clearly within that class of public boohs or official registers, which may bo proved by an examined or sworn copy. 1 Greenleaf on Evidence, s. 483—5; 1 Best on Evidence, s. 487; Spaulding v. Vincent, 24 Vt. 501; State v. Intoxicating Liquors, supra; Evanston v. Gunn, 99 U. S. 660. It was also admissible upon the question of who was conducting the business.

III. Sentence was respited in tbe court below. No finding was made either by the court or jury as to whether the respondent was guilty of a second offense or not. .There is no question, therefore, in respect to the sentence before us.

Exceptions sustained, judgment reversed, verdict set aside, and cause remanded.