State v. Horace Bonney, 39 N.H. 206 (1859) - Opinion

Indictment, charging the respondent with an illegal sale of intoxicating liquor.

Thomas B. G-ault testified, that about the middle or last of June, 1859, he purchased three glasses of intoxicating liquor at the bar of the public house kept by the respondent, in Hooksett, in this county, of a man unknown to him, and whom he had never seen before or since, but whom he described. Other evidence tended to show that a man, answering to the description given by this witness, had been employed at work in and about the public house of the respondent during the past summer.

Savory T. Burbank testified, among other things, that on the second day of July, 1859, he had a conversation with the respondent in relation to the character of the publie house kept by the latter, in which the respondent acknowledged that he bad sold intoxicating liquor therein, and avowed bis determination to continue tbe traffic. To tbis testimony of Burbank the respondent objected, but tbe court admitted it.

Tbe jury having returned a verdict of guilty against tbe respondent, be moved that tbe same be set aside and a new trial granted, for supposed error of tbe court in admitting tbe aforesaid testimony of Burbank.

Tbe testimony of Burbank that the respondent confessed that be bad sold liquor, and would continue to sell, was not competent. Evidence of other sales could not have been-received, as tending to prove tbe charge in tbe indictment; much less, then, should tbe confession of that fact have been received. See Boscoe’s Cr. Ev. 81, et seq. Tbe only tendency of such evidence was to excite tbe prejudices of tbe jury, and to cause tbe respondent to be convicted, not from proof of tbe crime charged in tbe indictment, but from proof of other acts, on account of which no legal accusation existed against him. Neither does tbe fact that tbe respondent himself sometimes sold liquor tend to prove, either legally or otherwise, that be bad authorized a third person to sell for him. Proof of tbe fact that a third person bad at other times sold tbe respondent’s liquor, with bis knowledge and assent, might possibly tend to show an agency, but bow can tbe fact that a man bad traded horses in July, “ and avowed his determination to continue tbe traffic,” tend to show that be bad authorized another to trade for him tbe “ middle or last of June”?

Tbe question in tbis case is, simply, whether it is competent to show that tbe respondent, at tbe time of the sale, as charged in the indictment, was engaged íb the business of selling intoxicating liquors.

The evidence tended to prove a sale at the defendant’s public house, and by his servant; and whether the servant was then acting by his authority was a point in issue. That he was employed about this public house by the defendant, during the summer, and sold this liquor at the bar, would tend to show such authority. And we think it competent also to prove that the defendant was at that time engaged in such traffic; that he kept liquors for sale at his hotel. It stands indeed upon the same footing with proof that he kept a hotel, had a bar, and other conveniences for the keeping and sale of liquors, or that he actually kept liquors there. His statement that he had so sold, and should continue to do so, tended legally, with the other proofs, to establish the authority of the servant to make the sale in question. So it is held, in State v. Foster, 23 N. H. 348, that the authority may be inferred from the relative situation of the parties and the nature of the employment. See, also, State v. Marvin, 35 N. H. 22. The statement of the defendant, on the 2d of July, that he had sold and should continue to sell liquor, would, with the other circumstances, authorize the jury to find that when the sale in question was made, about the middle or last of June, of the same year, he was engaged in' such traffic.

On the whole we think the evidence was properly admitted, and there must be