Vallance v. King

By the Court, Gridley, J. There are two counts (the 2d and 5th,) in the declaration in this cause, founded on a violation of the 16th section of the old excise act; (1 R. S. 680;) and under these counts the plaintiff is entitled to retain his verdict for two penalties, if no error was committed by the court or jury, upon the trial of the cause, which requires u's to grant a new trial. It is argued, by the defendant’s counsel, that in a case when the electors of a town had voted “ no license,” the provisions of the revised statutes were repealed except so far as to fix the amount of the penalty to be recovered under the act of 1845. We held otherwise, however, at the last Oswego term, upon the authority of an adjudication of the late supreme court. The same point is also substantially decided in the case of Hodgman v. The People, decided in January, 1847, but not yet reported/ This leads us to inquire whether there was any error committed by the judge, upon the trial, which requires us to set the verdict aside.- (1.) The admission of the town records is alleged to have been erroneous; and if the 3d, 8th and 9th counts of the declaration had been stricken out at that stage of the trial, or if the objection had been placed on the ground that the evidence was inadmissible under the other counts in the declaration, the objection would have been good, and the evidence' ought to have been excluded. The objection, however, we think was placed upon untenable grounds. The second section' of the act of 1845, provides for entering the result of the election upon the records of the town, and the book was competent evidence. (See 1 R. S. 343, §§ 12, 16.) And it was- unnecessary that the special allegation contemplated by the objection, should have been inserted in the declaration. Bat if the judge committed an [551] error in this respect, it became immaterial in the progress of the cause — the recovery having-been under the provisions of the revised statutes, and no offer being made to prove a license. This being an application to set'asjde the verdict upon a case, a new trial should not be granted when the court can see that the error of the judge could not have injured the defendant. (3 Hill, 214. 2 Id. 205. 1 Denio, 524.) (2.) It is insisted that the judge decided erroneously in holding that more than one offence could be proved under one count. The case of Hodgman v. The People, before cited, and 17 Wend. 475, are authorities to show that, upon an indictment, this would have been a fatal error, Nor is the general proposition to be denied th.at the rules relating to the admission of evidence are the same in civil as they are in criminal cases. But it has been established that under the provisions of the revised statutes, several penalties may be recovered upon the same declaration. (3 Hill, 527.) And in 6 Hill, 518, it was decided that the same words in an aption of slander might be proved to have been uttered at different times and places, though laid in a single count only. (See also The People v. McFadden, 13 Wend. 396.) But we do not deem it necessary to decide this point; for a mere abstract decision in favor of the admission of evidence, unless evidence was actually given under it, is no ground for a new trial. It does not appear that a greater number of independent offences were given in evidence under this decision than there were counts to which they were applicable. The jury found that there were only two offences proved, and we have already seen that there were two sufficient counts under which the plaintiff was entitled to recover. The defendant, therefore, could not have been injured by this decision, and the authorities already cited forbid us to grant a new trial for such an error. (3.) We think the judge was right in refusing to nonsuit the plaintiff. There was evidence enough to justify him in submitting it to the jury. (4.) The judge was requested to charge several matters in one continuous proposition, which he refused to do, and there [552] was an exception for such refusal to charge, that is, for his refusal to charge the whole matter thus proposed, and not for refusing to charge any one part of the proposition pointed out as objectionable. Now the judge was right in his refusal, if any part of the entire series of points proposed was wrong. The judge decides upon the entire proposition put forth by the counsel; and is not bound to select such parts of the whole proposition as would be admissible, if standing alone, and to pass upon them separately, unless requested so to do. He performs all the duty required of him when he decides upon the entire proposition as the counsel chooses to present it. The counsel has a right to submit his propositions separately, and to require the judge to pass upon them separately; but he has not done so here, and as we think, for that reason, can take nothing by his general exception. (See the cases collected in 2 Cowen& Hill's Notes, p. 270.) The judge was right, we believe, in refusing to charge that there was no evidence of any sale by or with the defendant’s knowledge. (5.) The charge itself, so far as it went, was unobjectionable. It was substantially a charge that the plaintiff must recover, if at all, under the 16tlt section of the act relating to excise, in the revised statutes, And the jury found but two such sales— a number that does not exceed the number of counts for a violation of that section. The objection that the judge charged the jury that they might find a verdict upon their “ belief ” merely, is hypercritical. The judge must be taken to have meant a “belief” founded on the evidence; and so the jury must have understood him. (6.) We have already anticipated the only remaining question that can be raised here; and that is upon the sufficiency of the evidence to uphold the verdict. We have carefully examined the testimony in the case, and have no doubt that enough was extracted from the witnesses, reluctant as they manifestly were, to warrant the jury in finding all the facts necessary to support the verdict. Upon the whole, therefore, though the judge may have committed some errors upon the trial, we do not think those errors [553] were important, or that the defendant could have been prejudiced by them. And as the motion is made upon a case, instead of a bill of exceptions, the verdict must stand, and the motion be denied.