This was a complaint against the defendant for a single sale of spirituous liquors to one Charles T. Goodwin.
I. The sale was made in the defendant’s shop by a clerk in his employ. By B. S., c. 27, § 28, the liability of the master equally accrues whether- the sale be by him, his clerk, agent or servant. Being master he is responsible for those in his employ. A sale by a servant in the shop of his master is prima facie a sale by the master. The facts that the defendant was in possession of the shop, that he was the owner of the liquors sold and that the sale was made by -his servant furnish evidence which unexplained, is amply sufficient to authorize a jury to find the master of the shop guilty. Com. v. Nichols,
II. The witness to whom the sale was made was inquired of by the prosecuting officer of government, whether prior to this time he had purchased liquors of the defendаnt, to which he answered that he had. This evidence was offered to show the assent of the defendant and was properly received. In State v. Bonney, 39 N. H., 206, on proof of a sale by the defendant’s servant, it was held competent to px’ove that the defendant was engaged in the sale of liquors for the purpose of showing that the servant was authorized by his master to make such sale. Indeed a servant would be little likely to sell without authority. Still less would it be presumed that he would sell in defiance of the will of his master and against his express commands. Sales of liquors by the master show that they were there for sale ', and if for sale, it is a reasona
III. The instruction to the jury to determine whether the directions given to the clerk not to sell any spirituous liquors were in good faith or not, was proper. If the command was merely colorable and given with the intent that it should be disobeyed and received and acted upon by the servant with the understanding that such was the intent, it would assuredly constitute no answer to this complaint. In State v. Simons, 17 N. H., 83, the defense was, the liquors werе a gift and not a sale. In delivering the opinion of the court, Gilchrist, J., says : “They were instructed to inquire whether the language used by the parties to the alleged sale and their accompanying acts, were used by them to effect a sale of the liquor under such disguises as would render the detection of the crime difficult; or whether on the other hand, it was the purpose of the defendant to bеstow, and of the other parties to receive, the liquors as a gift. Offenses against the law are' commonly committed under the protection of some false pretenses designed to avert. or baffle the vigilance of the police, and other evidence than the plain admissions of the parties charged, is commonly found necessary for their conviction.”
IY. The .evidеnce on the part of the government had made out a prima facie case against the defendant — a sale by his servant of his liquors in his shop.
The defendant might go on the stand as a witness or not. By the constitution, he could not “be compelled to furnish or give evidence against himself.” The privilege of exemption from criminative interrogation or cross-interrogation was guarantied to him. But this privilege mаy be waived. By B. S., c. 134, § 19, “in all criminal trials, the accused shall, at his own request, but not otherwise, be a competent witness.” The defendant at his own request became a competent witness, and thereby waived his constitutional privilege. He then subjected himself to the peril consequent upon a cross-examination as to all matters pertinent to the issue. State v. Ober, 52 N. H., 459. Com. v. Bonner,
Y» The defendant going upon the stand as a “competent witness” was inquired about as to certain sales made by him prior to the one charged in the complaint to which he made answers admitting prior sales by himself. The witness interposed no objection to answering the question, because the answer might be self-criminative, but the objection was taken by the counsel for the defendant and by him alone.
Now, if there is anything well settled, it is that the privilege of exemption from answering interrogatories, which being answered truly would disclose the guilt of the person interrogated, is the privilege of the witness alone. It is granted because of crime and for its impunity, lest by means of and in consequence of the proof furnished by the answer, the witness may hereafter be subjected to the punishment which the law has affixed to his criminal misconduct. It is the privilege of crime. The interests of justice would be little promoted by its enlargement. “The privilege,” observes Nelson, C. J., in Oloyes v. Thayer,
The objection, therefore, that the questions would tend to criminate the defendant if truly answered, would, according to the authorities cited, seem not open to the defendant, as when testifying he did not claim his privilege.
Even if it was otherwise, it will be found that the inquiries proposed were strictly within the principles established in numerous and well considered cases.
VI. The objection is taken that the counsel for the state, in his inquiries of the defendant after at his own request he was a witness, transcended the limits of legitimate cross-examination.
The defendant was charged with having sold intoxicating liquors to one Chаrles T; Groodwin, on a day certain. It is immaterial, so far as regards his criminal liability, whether the sale was by him or his authorized agent. He was not obliged to testify. He
“broken teacups, wisely kept for show,”
or were they a standing notice to the incomer inviting him to partakе of their contents ? His direct examination related to sale made in his shop. It would be a strange restriction upon the right of cross-examination to refuse permission'to the inquiry made.- In Com. v. Morgan,
The sale here was by the servant. These liquors were in the shop. The purpose for which they were, was material, whether for ornament or for use. The defendant was asked if he had any doubt that he sold to numerous persons within thirty days prior to the sale for which he was on trial. This inquiry he answered in the negative, not however interposing any personal objection to answering. Had the salé been by him, though denied, the question would have been proper. In State v. Foster, 23 N. H., 348, a witness having testified as to part of a transaction with one Jefferson was asked, if hе sold any brandy, in the question, to which he objected to answer as criminating himself, but he was required to answer, and the ruling so requiring him was held correct. In State v. Ober, 52 N. H., 459, the defendant, on trial of an indictment for keeping liquors for sale, was asked as to sales by him a
The inquiry made, and to which we have referred, and similar inquiries were proper on cross-examination. The subject matter of investigation was a sale claimed to be illegally made. The question of authority to sell wаs raised. True, the authority of the servant to sell was denied. But he was properly cross-examined to negative the truth of that denial. .His own example would tend to show whether his denial was true or not, and whether there was authority to sell or not. This is fairly a part of the transaction disclosed in the direct testimony. His acts tending to negative the truth of his denial related to the subject matter of the sale, which he denied having authorized. He might have been asked if he did not authorize the sale. Equally he might be asked as to other acts of his, tending to prove authority. That the defendant kept the shop at which the liquors were sold; that they were his; that he was in the habit of selling them; that the servant -who, it was asserted, has disobeyed his command, was retained in his employ to the time of trial, were facts proper for the consideration of the jury, upon the inquiry whether the command, given to the servant alleged to be disobedient, was given to
The counsel refer us to Tillson v. Bowley, 8 Greenl., 163, and to Low v. Mitchell, 18 Mаine, 374, as authorities against the correctness of the cross-examination of the respondent as conducted by the county attorney. These were bastardy cases, and the complainant was inquired of as to whether, about the fime charged in the complaint, she had intercourse with any other man than the respondent, by whom the child might be begotten.. The presiding justice ruled that shе was not obliged to answer, and the ruling was sustained in the first case by "Weston,' J., who says, “the complainant could not be held to answer a question admitting or accusing herself of an offense which by our law may be criminally prosecuted.”
The limits of the cross-examination of a witness, who, at the same timé is a party, were not discussed by counsel, nor considered by the court. The general rule is well sеttled that a witness, while not obliged to criminate himself, may waive that privilege, and consenting to testify to a matter criminating himself, must testify in all reSpects relating to that matter as far as may be material to the issue. Now the issue in the cases cited, was the paternity of a child begotten by somebody upon the body of the complainant. It is obvious that the more unchaste the mother, and the more numerous her paramours, the greater the uncertainty of paternity. The defendant is charged with the paternity of the child to be born. That is the matter in issue about which the inquiry was made in the first instance, and'about which the complainant has consented to testify. Cannot she be cross-examined to weaken or negative the force of her direct charge ? Her knowledge of the paternity is the question, and cannot she be inquired of as to the possibility of her assured knowledge, as to who, among the recipients of her favors, is entitled to the doubtful honors of fatherhood ?
In Low v. Mitchell, 18 Maine, 372, Shepley, J., while merely affirming the first decision, says, if the witness “consents to testify
A witness on cross-examination must answer as to all matters pertinent to the issue, whether inquired about in the direct examination or not, unless a personаl privilege is invoked and the matters elicited would tend to criminate him; in which case, the cross-examination can be extended only to the subject matters of inquiry of the direct examination. In the case at bar, the subject matters of inquiry were a sale and whether it was authorized by the defendant — involving the double inquiry of a sale and its authorization — which being denied by the defendant, he was prоperly cross-examined as to his acts tending to show that whatever was done in his shop was done by his implied authority.
VII. By R. S., c. 27, § 55, it is enacted that “in any suit, complaint or indictment, or other proceeding against any person for a violation of any of the provisions of this chapter relating to spirituous liquors, other than for the first offense, it shall not be requisite to set forth particularly the record of a former conviction, but it shall be sufficient to allege briefly, that such person has been convicted of a violation of any particular provision or as a common seller, as the case may be, and such allegation in any criminal process, legally amendable in any stage of the proceedings, before final judgment, may be amended, without terms, and as a mаtter of right.” By § 57, the form is specially proscribed and in the briefest terms.
The allegation in the complaint under consideration is “that the said Horace Wentworth has once been convicted of a single sale under section 28 of chapter twenty-seven of the Revised Statutes of Maine, in the county of York, to wit: on the twelfth day of October, A. I). 1874, in the municipal court of said city of Biddefоrd.”
It is obvious that the legislature did not require technical ac
The allegation is sufficiently certain without an amendment. Upon recurring to the record introduced to show a prior conviction, it appears that judgment was rendered upon the defendant’s plea of guilty, so that the fact of such conviction is established by proof which he, at least, cannot very well controvert.
Exceptions overruled.
Judgment for the state.