State v. Seigenthaler

ELLISON, J. The defendant was proceeded against by information filed by the prosecuting attorney of Harrison county charging him with a violation of the local option law in the sale of liquors. He was convicted, fined five hundred dollars and has appealed to this court. The same point as tO' the validity of the adoption of the local option law in Harrison county is made as was urged in State v. Foreman, decided at this term adversely to defendant. We need do no more than refer to that case for the reason for our ruling the point against the defendant. [513] In this case the' defendant is charged generally with an illegal sale of intoxicating liquors on the 8th of Sep-' tember, 1903. The information was filed on the 20th of October of that year. The evidence offered by the State in support of its charge was confined to two witnesses' who testified to one sale only, that is to say, to the sale of three drinks at one .time, one to each of the witnesses and one to Hogan who was with them, one of them paying twenty-five cents for the three drinks. The defendant testified in his own behalf a point-blank denial of the truth of the State’s witnesses. Hogan whom the' State’s witnesses stated was with them testified for the defense in denial of the statement of the two witnesses' for the State. He was then asked on cross-examination over defendant’s objection: “Didn’t you at various' times during the summer of 1903, go into Seigenthaler’s place and get liquor?” In passing on the propriety of such question we will do so mindful of the right of the State on a general' charge of an illegal sale without naming to whom, to-show a number of sales to separate persons at any time within a year prior to the indictment or information. In this case the State, as already written, confined itself to a specific sale and tendered that issue to the defendant. Now conceding its right after the close of its case, to prove, by cross-examination, other sales, at other times, within the year, it must do so in a, proper manner ; that is to say, it should prove a sale and that it was of the forbidden quantity. The offer of proof in this instance was whether he got liquor, not whether he bought it and not whether it was the forbidden quantity. It was however evidently not the purpose of the State’s attorney to prove another offense. His object was cross-examination, and so he defends the action here by brief and ora] argument. But we cannot see how such cross-examination can be upheld. It did not relate to the [514] charge as sought to be proven by the State, but did,, of course,, tend to prejudice the jury against the defendant in relation to matters not on trial. In the case of State v. Fierline, 19 Mo. 380, a witness testified that he did not recollect of having bought beer of the defendant within one year previous to filing the indictment. He was then asked by the State, “Have you ever seen, in your whole life, any beer bought at the defendant’s house?” The Supreme Court ruled the question as improper and prejudicial to the defendant. See also State v. Roberts, 33 Mo. App. 524. We by no means wish to limit the right of cross-examination where the object sought is to test the witnesses’ veracity, interest, knowledge, etc., but the right must not be carried so far as to amount to abuse of the privilege and become mere matter for prejudicing the jury outside of any issue in' the case, or beyond any object legitimately falling within the reason for cross-examination. In a prosecution for selling liquor to a minor, the defendant after stating that he thought the boy was of age, was asked, on cross-examination, if he had not stated that he had theretofore been “complained against for selling liquor to minors and that he was going to keep right on selling it just the same;” the Court of Appeals of New York went so far (possibly too far) as to hold the question improper and prejudicial. [People v. Werner, 174 N. Y. 132.] Manifestly much must depend upon the nature of the charge against the defendant. Thus if the question is whether the liquor charged to have been sold was intoxicating, evidence of its having such result at other sales is well received. So if the proof is a sale on Sunday by the defendant’s agent or clerk, and he denies knowledge of the sale or authority to the clerk, he may be asked, on cross-examination, if he had not paid a fine imposed on his clerk for a sale on a previous Sunday, it was held a proper question as tending to discredit his [515] statement and to show his consent. [Commonwealth v. Nash, 135 Mass. 541.] Again, there are cases to he found where the mere keeping of liquors for the purpose of sale is an offense. And where the prosecution is for maintaining a nuisance by the keeping and selling of liquors. If we were considering such character of cases we could look with more favor on the questions as asked by the State in this case. A clerk in defendant’s store was a witness for the defense and his evidence tended to contradict the evidence for the State. He was asked on cross-examination whether, on the day charged, “men were not going behind the prescription case every hour in the day.” He was also asked the general question whether defendant did not “keep liquor back there to sell,” meaning the back parlor of the store. He was further asked generally, if “men drank and bought liquor there.” For the reasons already given, these general and indefinite questions were not proper and were prejudicial. We consider the point made against the sufficiency of the objections made by defendant’s counsel as not well taken. The evidence sought by the several questions was not competent for any purpose within the issues tendered in the case. The judgment will be reversed and the cause remanded. The other judges concur.