State v. Thomas

47 Conn. 546 | Conn. | 1880

Park, C. J.

The object of the statute under consideration, like that of other statutes upon the same subject, is to prevent the unlawful traffic in intoxicating liquors. One section forbids all unlicensed persons to keep such liquors with intent to sell them. Keeping such liquors for such purpose would be perfectly harmless, if it could be certain that nothing would follow from it. But the statute takes it for granted that where such liquors are thus kept, opportunities will present themselves for carrying the intent into execution, and sales of the liquor will in fact be made. For this reason the keeping of such liquors for such a purpose is regarded as equivalent to the selling of them. Another statute forbids the keeping open on the Sabbath day of any place in which it is reputed that intoxicating liquors are exposed for sale. The keeping open of such places, if that was all, would be no worse than the keeping open of the places without such liquors and without such reputation. But the legislature saw that if such places were suffered to be kept open intoxicating liquors would be sold in them, and that keeping open was only another name for selling liquors; and all experience verifies the conclusion. Drunkards frequent such, places as flies frequent the shambles of a butcher; and one could as easily be prevented as the other. It might as well be claimed that the statute against keeping open such places on Sunday is unconstitutional, as that the statute under consideration is so. The language of the statute is as follows:—“ Every person who shall keep a place in which it is reputed that intoxicating liquors are kept for sale, without having a license therefor, shall,” &c. This court, in the case of State v. Morgan, 40 Conn., 44, said that “this statute was intended to reach places where intoxicating liquors are kept for sale, and such places only. * * The statute seems to presume that if a place has the reputation of being one where intoxicating liquors are kept for sale, it is a place where such liquors are in fact kept for sale, and therefore makes it criminal for a man to keep a place which has such reputation.” All that can be said is, that the statute treats a place having such reputation, unexplained and uncontradicted, just as it treats a place where such liquors are in fact sold, or are in fact kept for sale, because the two places are really of the same character.

It is little to the purpose to talk about natural rights in such cases, and the danger of convicting innocent men upon insufficient evidence. The crime of selling intoxicating liquors is peculiar. - Other crimes seek concealment, but the business of selling such liquors cannot be successfully carried on in secrecy. The occupation requires the broad light of day. A liquor establishment is as well known to the community in which it exists, as a grocery, dry goods, mechanical or manufacturing establishment would be. Its customers are easily distinguishable from others; they can be easily recognized at a distance. They loiter about the establishment as drones about a hive, and constitute a sign for the place as unmistakable as one in letters over the door. The ground upon which the defendant claims the statute to be unconstitutional is, that the crime is made to consist in the reputation of the place, irrespective of its actual character. Here is the defendant’s error. The crime consists in the character of the place; and its reputation, unexplained and uncontradicted, is taken as conclusive evidence of its character as a place where intoxicating liquors are in fact sold.

The counsel for the defendant on the argument of the case to the jury claimed, and asked the court to charge the jury, that the statute in question was unconstitutional, and that the jury were judges of the law as well as of the fact, and that if they conscientiously believed that the statute was unconstitutional they had a right to so decide. The court charged them that they were judges of the law as well as of the facts, but that they were as much bound by the law as the judge on the bench, and that it was not to be supposed that they would decide that the statute in question was not valid when the Supreme Court of the state had held it to be valid. The counsel for the defendant complain of this charge and ask for a new trial on account of it. They say that the Supreme Court had never held the statute constitutional and so that the judge misled the jury and prevented them from freely exercising their right to judge for themselves of the validity of the law. They say that the judge had a right to instruct them as to what the law was, and that he might express his own opinion as strongly as he pleased, but that he had no right to add to the influence of his own opinion with the' jury the weight of a supposed decision of the Supreme Court, when no such decision had in fact ever been made.

The whole objection then lies to the fact of the judge’s reference to a supposed opinion of this court. Now it can really have made little difference whether the court had actually made such a decision, so long as the judge was right in his view of the law and this court was prepared to sustain him in that view. The most that can be said is that the jury were misled into taking the only view of the law that they could correctly have taken. The defendant lost a possible chance of the jury’s erroneously deciding the law in his favor. This ground for a new trial does not commend itself to our sense of justice. But we need not decide whether, if that were the precise state of the case, it would be a sufficient ground for granting a new trial. This court had in fact decided the question as to the validity of the statute. In the case of State v. Morgan, before referred to, the court had this very statute under consideration, and then gave it snch a construction as to take it wholly out of the question now made with regard to its constitutionality. The point now made against its constitutionality is, that it undertakes to punish a man for the reputation which his house has acquired, while such reputation may have no basis of fact, and may have grown out of the mere idle or malicious talk of his neighbors. The passage we have before quoted from the opinion in that case shows that the court construed the statute as intending only sncli reputation as was founded upon and so a legitimate proof of actual sales of liquor; and that it was open to any person prosecuted under the statute to show that the reputation was an unjust one and without foundation. With this qualification there could be no danger of his being convicted upon an unfounded reputation. The judge very properly therefore regarded the question of the constitutionality of the statute as already disposed of by the court.

There is no error in the judgment below and a new trial is not advised.

Iii this opinion the other judges concurred..