Willard v. StateWillard v. State
- Reporters:
- ,
- Before:
- Stuart
This wаs an indictment for retailing spirituous liquors without license. Trial by jury and verdict of guilty. Motion for a new trial overruled, and judgment on the verdict.
Two errors are assigned.
*408The first is, overruling the motion to quash the indictment.
The allegation which counsel deem defective, is, that Willard “unlawfully barterеd and sold one pint of spirituous liquor,” &e. It is not аlleged, in so many words, that the quantity sold was less thаn a quart. But the allegation, as it stands, seems sufficient. A pint is a measure as well known as a quart. The one word is quite as definite as the other. An allegation that a pint was less than a quаrt could not be more explicit, and was, thеrefore, unnecessary.
If, in point of faсt, the party sold the pint, not separatеly, but as part and parcel of a quantity mоre than a quart, to the same person аt the same time, that was matter of evidenсe of which he could avail himself on the triаl. The motion to quash was properly ovеrruled.
The second error assigned is, overruling thе motion for a new trial. The evidence is аll set out in the record.
It appears that there were several indictments pending against Willard at the same term of the Court, for vending to the same person, on one of which he had been tried and convicted. The record in that case was given in evidence in thе case at bar to prove a former conviction for the same offence. The witness testified that he had bought liquor from Willard by a less quantity than a quart several times; but that he did not know and could not distinctly recollect that thе time to which he then testified was any other оr different from the time testified to by him in case number one, in which Willard was already convicted.
The witness further stated, “ that the place where the liquor was sold was suppliеd with suitable bottles, liquors and fixtures for a bar; that about the time of the selling in question, for a period of four weeks, witness had drank at that bar hаbitually, some days as often as three or four times a day.”
The evidence given in the former trial was not set out in the record offered in evidence for the purpose of showing a former conviction.
Whether the former conviction was made out was a question for the jury. From the evidence of such repeated violations of the law, the inference might be safely indulged that the offencе charged was different from that on which he had before been convicted.
Per Curiam.The judgment is affirmed with costs.