20 App. D.C. 29 | D.C. | 1902
of the Supreme Court of the District of Columbia, who sat with the court in the place of Mr. Chief Justice Alvey, delivered the opinion:
The first prayer on the part of the defendant that the jury should be instructed upon the evidence to render a verdict for the defendant, was so palpably improper that it may be dismissed without further notice.
The second was to the effect that the jury could not find the defendant guilty, unless they should find the bade room was used as part of the bar-room for the purpose of making sales therein;— that is to say, that although they should find the bar-room was not closed on Sunday morning, yet they should acquit unless they should also find the bade room was used for the purpose of making sales therein. The information was not for selling liquor in any part of the bar-room, but for disobeying the law by not closing it on Sunday.
The third instruction asked for was that if the jury should find the defendant entered his bar-room at the time stated, and took therefrom beer and carried it into the other room, not for the purpose of making a sale but for the purpose of entertaining his bar-tender and his cousin in 'his pripate apartment, their verdict should be for the defendant.
A vice running throughout this instruction was the assumption that the bar-room (described as twenty-five feet in length) had ceased to be such as a whole by the erection of the partition, so that only the front portion of the apartment thereafter remained a bar-room; while the back portion being no longer part of the bar-room, had become only the private apartment of the defendant, as contra-distinguished from the bar-room.
Dor the court to have granted the instruction with these assumptions, would practically have misled the jury; for while taking from it the power to decide as to the correctness of the assertions of the defendant on this point, it was calculated to induce them to believe the opinion of the judge was that when the defendant left the two guests and went behind the bar-counter to get the whisky and beer, he was then, for
But apart from this objection; if the proposition were correct it would result that no sales of liquor to minors at any time, or to adults on Sundays, in “ the private apartment,” could be punished as being a sale in the bar-room. We think the instruction was properly rejected.
The main reliance of the defendant for a reversal of the judgment is that the erection of the partition effectually exonerated him from all obligation to close the rear portion of the room, (which was thenceforth to be known as the “ private apartment,”) on Sundays; so that even though this “ private apartment ” may have been open on that morning, the fact should not be imputed as an offense to the keeper of the reduced portion of the room, which had by his act been set apart as the true and only bar-room. It would result that if the defendant had seen fit to construct another partition in front of the bar-counter at the distance of a few feet, with a similar swinging door for access to the counter and a square hole for passing cans for beer, the only portion of the house that could then properly be called a bar-room would be the strip on which the counter stood with the narrow selvage behind and in front of it: and so for the same reason, if he had occupied the entire space thus liberated from the law, with a number of alcoves such as are found in restaurants for the private accommodation of customers, they would all become harbors of refuge for offenders within their limits: and the argument would equally exonerate the remaining strip then constituting the bar-room from liability for whatever might occur in the alcoves. Such a contention could not impose upon persons of ordinary understanding, even if its contriver had himself become convinced of its legality. That it would utterly nullify the provisions of the act requir
As Congress has decided that an effective step towards the discouragement of public drinking on Sundays with its accompanying disorder, — (such as the loud talking within the defendant’s place that had attracted the attention of the officers at so early a stage of the symposium)— would be to forbid any bar-room from being kept open throughout the whole day, and has intrusted the efficient enforcement of the law to the courts, it would be mere child’s play on their part, to permit such very transparent devices to defeat its execution. For the defendant’s erection of the partition, in view of the use he made of the contrivance, differs only in degree as to its effect from what would have resulted if he had drawn a chalk line across the bar-room, and, by word of mouth or by writing on the floor, had proclaimed that the front part of the room was the only bar-room and the rear part was his “ private apartment.”
But apart from the futility of the pretense that the part •of the room where the persons were sitting with the partly emptied beer bottles before them, (though neither the glass of whisky nor any other glass appeared when the police were admitted upon knocking at the side door) was not a part of the bar-room, the evidence sufficiently shows the bar-room,— even if limited to the front part,— was actually open on Sunday morning.
The police were attracted by the light within, and looking through the front windows of the room they saw the defendant come through the swing partition door, go behind the counter, pour out a glass of whisky, and take from an icebox behind the counter two bottles of beer. Where was the defendant while all this was going on ? Certainly not with his cousin in the “ private apartment.”
If there was any place remaining in the entire house, after the defendant had arranged his partition and swing door, that must be admitted to be a bar-room, the defendant certainly was in that particular place on that Sunday morning;
In Hannan v. District of Columbia, 12 App. D. C. 265, it was decided that the mere opening of a bar-room' for the purpose of ingress or egress to or from the other part of the house was not a violation of this statute. But in the course of its opinion the court said: “ The bar must be kept closed, and the bar-room,— that is the room devoted to the uses of the bar,— must be kept closed, against all who would resort to such places to obtain liquor on Sunday; and this requirement must be strictly observed and enforced. * * * If, indeed, it had been shown that the door was opened, or any other way provided, by which even a single individual could have procured liquor from the bar on Sunday, the statute would have been violated and the proprietor of the bar would be liable to punishment.” And this proposition is cited with approval by the court in Lehman v. District of Columbia, 19 App. D. C. 217.
This statement by the court as to what acts would certainly amount to a violation of the law, falls far within the degree of proof shown in the present case; which we think fully justifies the verdict of the jury.
It is of course clear there was no necessity to establish any sale of liquor on Sunday within the bar-room, to procure a conviction on this information, if the bar-room was open within the meaning of the act, which was the scope of the charge in the case at bar. Lehman v. District of Columbia, 19 App. D. C. 217.
There only remains to consider the four exceptions to alleged errors in the charge of the judge.
‘ Of course the objection to the entire charge is untenable if there appears any proposition in it that was correct. There can be no doubt that such was the case here.
Nor is it ground for reversal that there may appear isolated errors in parts of the charge, if they were elsewhere corrected specifically; or, when taken in connection with the rest of the charge appear to have been cured by its general effect. Gleason v. RR. Co., 5 Mackey, 356.
We find no such language in the charge as it appears in the record. What we do find there implies quite the reverse, viz.: “A bar-room is allowed to be opened for legitimate purposes ; for the purpose of seeing to the fires, to the windows, or for any legitimate purpose.- It is not to be entered even by the proprietor for the purpose of serving drinks in a back room, because if it is taken from the bar for this purpose, it is not closed in contemplation of law.”
With respect to the alleged errors said to be presented in the three other statements indicated, we observe they involve certain questions of law growing out of the construction of the statute in connection with the facts, which we have already decided against the defendant, and cannot therefore discuss again.
We have examined the charge carefully, and have no difficulty in deciding that it presents a careful, fair, and correct statement of the law in the case; and we see no ground for reversing the judgment below,— and it is accordingly affirmed, with costs.
