D'Amico v. State

Pennewill, C. J., after stating the facts, delivering the opinion of the court: The assignments of error are nine in number, and are all covered by certain contentions made by the defendant in his brief, [601] which will be considered by the court in the order in which they were argued. The first and second contentions are as follows: (1) That the testimony produced by the state having failed to establish by clear, competent and sufficient evidence, the sale of a barrel of wine, the court should have directed a verdict for the defendant. (2) That the transaction involving a barrel of wine, which occurred between the defendant and Joseph Le Fieri was a contract to sell and not a sale. The question raised by these contentions is this: Was there sufficient evidence of the sale charged in the indictment to warrant the jury in finding a verdict of guilty? We have set out, substantially, the evidence produced by the state respecting the sale of a barrel of wine by the defendant to Joseph Le Fieri, and it is unnecessary to repeat it. It is sufficient to say that one witness testified that he bought from the defendant for Le Fieri, to be delivered at his commissary at Bellevue, a barrel of wine, at the time stated in the indictment. This testimony was corroborated in material parts by another witness. A third witness testified that the defendant admitted to him that he had sold the barrel of wine to the manager of Le Fieri’s commissary. None of these witnesses were shown to be unworthy of belief. There was considerable testimony produced by the defendant that was contradictory of that produced by the state. Indeed, the evidence respecting the sale was very conflicting. The defendant contends that there whs a decided preponderance of evidence showing there was no sale as charged in the indictment. But even if the evidénce was very conflicting, or there was a preponderance in favor of the defendant, the court below could not for that reason have instructed the jury to return a verdict of not guilty. The law is well settled in this state that the jury are the judges of the credibility of witnesses and of the weight and value of their testimony. They may believe some and disbelieve others. It is equally well settled that where there is any evidence upon which a verdict of guilty could be reasonably based, the court will not take the case from the jury or set aside the verdict. [602] The court are of the opinion that there was sufficient evidence in this case of an unlawful sale of liquor, as charged in the indictment, to warrant the jury in finding against the defendant. If the testimony of the state’s witnesses was true, the transaction in question was a sale and not a contract of sale. The price was agreed upon and paid; and the barrel of wine was on .the same day, or the following morning delivered to Le Fieri at his commissary at Bellevue. The third contention of the defendant is: That this transaction occurred wholly within the City of Wilmington, and even if it amounted to a sale contrary to law, the Municipal Court was vested with sole and exclusive jurisdiction of the offense, and the court below was, therefore, without jurisdiction. The defendant’s fourth contention is based upon the court’s charge,—that the proof as to the place of sale was sufficient if it was shown that it was made somewhere in New Castle County. In each of these contentions the jurisdiction of the court below is denied, and a determination of the question raised involves some consideration of two cases heretofore decided in this state, viz: State v. Mundy, 1 Boyce 40, and Dennis v. State, 5 Boyce 298. The case last mentioned is the later case, and the law declared therein should be upheld unless there is good and sufficient reason to disregard it. In that case the court said, that a careful examination of the act passed April 5, 1881, disclosed the purpose of the Legislature to provide penalties for two classes of offenders: (1) Those who are not licensees; and (2) those who are licensees. And it was held that the municipal court has sole and exclusive jurisdiction of the first class in the city of Wilmington, but is without jurisdiction in any case in which the accused is a licensee, whether the license authorized the sale complained of or not. [5] This court can see no reason to question the classification made in the Dennis Case, or the jurisdiction of the municipal court as therein declared. The jurisdiction of said court being confined to those cases in the City of Wilmington where the defendant is not a licensee, it could not have acquired jurisdiction of the case tried below in which the defendant was a licensee. The court below was the only court in which the defendant could be tried. [603] In the defendant’s fifth, sixth, and seventh contentions it is urged that the court below erred in permitting Joseph M. Armstrong, deputy collector of internal revenue, a witness called by the state, to testify as to facts obtained by him in his official capacity. [6] This contention is based upon the following rule promulgated by the United States Treasury Department and relating to collectors of internal revenues, viz.: “ They will decline to testify as to facts contained in the records, or coming to their knowledge in their official capacity; and this prohibition is hereby extended to include also internal revenue collectors, storekeepers and gaugers and agents.” Assuming that the facts concerning which Armstrong testified came to his knowledge in his official capacity, which we need not decide, the court are inclined to think that the letter from the Assistant Secretary of the Treasury granting the witness permission to testify in the case waived the requirement of the rule, and the privilege thereby conferred. But, even if that be not so, the court are of the opinion that the rule was made for the protection of the Treasury Department and not of defendants in criminal cases. The witness might have declined to testify because of the rule, but did not do so, and if he violated the direction of the Department he is amenable to it alone. . Certainly his disregard of the requirement cannot be invoked for the protection of the defendant. In all the cases cited by the defendant upon this point the witness declined to testify, and that fact distinguishes from the present case. The rule says that the officers mentioned therein “will decline to testify,” etc. It seems clear to the court that if such an officer does not decline to testify, or claim the privilege the rule was designed to confer, the defendant could not claim it for his own benefit. The testimony was, in our opinion competent, and it was not error in the court below to admit it. In his eighth contention the defendant complains, that the court below erred in refusing to allow the defendant to answer the following questions: “Q. To your personal knowledge was any letter, or were any_ letters written to Armstrong in which you denied having sold a barrel of wine?” • “Q. What conversation, if any, was there had between you, about being able to get revenue stamps?” [604] [7, 8] In regard to the first question it may be said that, if the letters inquired about were relevant and material, they would have been the best evidence, but no proper effort was made to get them, neither were copies offered in evidence. But even if they had been procured and offered they would have constituted what is known in the law as self-serving testimony, and for that reason inadmissible. It may be further said, in respect to this contention, that if the court erred in refusing to allow the defendant to answer the question, it was harmless. The defendant denied that he sold the barrel of wine in question or that he had violated the law, and if he had been permitted to answer the question referred to it would have added little, if anything to such denial, because in effect it would have been the same, and the verdict would not have been different. In regard to,the second question, it is sufficient to say: We cannot see how any conversation “about being unable to get revenue stamps” could be material to any issue in the case. [9] In his last contention the defendant insists that the court below erred in permitting Louis Le Fieri to answer this question: “Q. When you came in to get wine that morning, was there a barrel of wine at the commissary?" The court are unable to see how this question and the answer, “No, sir”, could have been harmful or prejudicial to the defendant. But, even if it was, we are clearly of the opinion that the question was admissible. The state was endeavoring to show that a barrel of wine was brought to the commissary on the day of the alleged sale or the following morning, and after the transaction between Paqua and the defendant. It was, therefore, permissible to prove by the witness that there was no barrel of'wine in the commissary in the morning of the day the witness and Paqua went to the defendant’s store, and Paqua negotiated for the barrel of wine, which he testified was at the commissary in the afternoon of that day or the following morning. We find no error in the record of the trial court and the judgment below is, therefore, affirmed.