Wheeler v. Calkins

By the court—Hogeboom, Justice. The evidence of a violation of the statute is very decided—almost irresistible. Everything was positively proved, except the defendant’s intent that the liquor sold should be drank out of his house, and as to that, the circumstances showing such intent were so strong that it is difficult to see how the jury could have come to a conclusion favorable to the defendant. Nevertheless they have done so, and the sole question is, whether, this being a penal action, and the verdict being for the defendant, the court will interfere simply upon the ground that the verdict is against the weight of evidence. No rule of law seems to have been violated. It is not pretended that the defendant’s license authorized sales of liquor to be drank off from the premises, nor would such a pretence, if made, have been sustainable. (Moore agt. Benson, 15 Wend. 260.) But the difficulty in the plaintiff’s case consists in the rule adopted 453 by the courts, and seemingly well established and uniformly acted on, not to grant new trials for errors of judgment in the jury in weighing the evidence in penal actions and those of a kindred character, where the verdict is for the defendant. The rule has become firmly fixed and has been repeatedly recognized by this court. (Seymour agt. Day, 2 Strange, 899 ; Matiison agt. Allanson, 2 Strange, 1238; Comfort agt. Thompson, 10 Johns. 101; Baker agt. Richardson, 1 Cowen, 77 ; Jarvis agt. Hathaway, 3 Johns. 180 ; Hurten agt. Hopkins, 9 Johns. 36 ; Rundell agt. Butler, 10 Wend. 119 ; Overseers of the Poor of Rochester agt. Lunt, 15 Wend. 565 ; Mansfield agt. Wheeler, 23 Wend. 79; Lawyer agt. Smith, 1 Den. 207.) The cases are so numerous that I am unwilling to disturb them, and as there is no allegation of tampering with, or misconduct of the jury, I am of opinion that the judgment should be affirmed.