Dickinson v. Bentley

G-baNGEE, J. — The action is in equity, and triable de novo in this court, and the only question is as to the sufficiency of the testimony. The essential averment of the petition is that the defendant is now employed and •engaged in keeping intoxicating liquors in a saloon and place with intent to sell the same contrary to law. No question is made as to the more particular averments of the petition, unless it be as to time, which we will notice. Appellant says that “plaintiff does not attempt to prove his case as alleged, thereby admitting his inability to do so.” It is true the proof shows the sales [485] by defendant after the first of August, 1888, and not before; and appellant states that the plaintiff “brings his suit on the twenty-second of August, and alleges that in the month of April, 1888, the defendant was engaged in the business of keeping a saloon in Dubuque.” If we are to understand by this that there is a fatal variance between the allegations and the proof, it may be said that the difficulty with the argument is that it misstates the record. The petition was filed August 22, 1888, and alleges that “the defendant has established a saloon and place for the keeping of intoxicating liquors * * * in violation of law, and is now engaged in keeping said intoxicating liquors,” etc. And again: “ That heretofore, since the eighth day of April, 1888, defendant, in the saloon and place aforesaid, by himself, agent, clerk,” etc., “has sold, to divers and sundry persons, said intoxicating liquors, contrary to, law. ” The difference between the record and the purpose of the proof as it is, and as presented in argument, is very manifest, and, to our minds, no question for discussion. We are so thoroughly convinced from the record that the essential allegations of the petition are true, and that relief should be granted, — and that in so finding we must reverse the judgment of the court below, — that we naturally inquire what considerations could have guided the court to its .conclusion. Our only advice in this respect is a statement in argument, which is undenied, and which seems to be about the only available ground for denying relief. Appellant makes the following statement as to the action of the court, and appellee, in argument, seems to have the same general view as to the effect of such evidence: “Upon the submission of the case upon the foregoing evidence, the court remarked that he would not grant an injunction upon the uncorroborated testimony of a witness who was employed and paid for procuring evidence, when the witness is not called upon the stand, and no opportunity is had for his cross-examination, and dismissed [486] the case.” It is true that the witness was not in court for cross-examination, but he was absent, and not cross-examined, because of the stipulation of the defendant; and we hardly see how it should operate to discredit a witness, because not cross-examined, if the party whose right it is to cross-examine waives that right. If plaintiff had taken the deposition of Mercer in due form, and defendant had not cross-examined him, would the court presume against. the witness because not cross-examined? If not, why should it under a stipulation that the statements should be read, and be entitled to the same force and effect as would the proper deposition of said witness to the same facts? We do not follow this feature of the case further, as we think the learned judge must have overlooked the stipulation in this respect. Any other conclusion is not consistent with an intelligent and conscientious discharge of duty. If the testimony of the witness is not to be disregarded because of the fact that he was not cross-examined, then we inquire if there is anything in the record to justify a disbelief as to the truth of his statements. . If his statements are true, the defendant is surely maintaining the nuisance. The criticisms upon his testimony go to the character of his calling; and that he “was importéd from Des Moines for the purpose of manufacturing evidence against defendant.” If by “manufacturing evidence” is meant procuring false testimony, and the charge is true, of course no decree should be based upon it, and the court’s action in disregarding it was right. What is there, to show, in such a sense, that he “manufactured evidence?” Mr. Adams testifies that he came from Des Moines, having been employed to procure testimony in relation to the violation of the prohibitory law. He was to receive $3.50 per day, and all expenses. Is there anything dishonorable or unmanly in a faithful, conscientious discharge of such duty ? If thieves were preying upon the possessions of the people, would it be dishonorable for a person to accept employment to procure [487] the testimony that would result in the conviction of an actual thief? If murderers abound, and their detection is difficult, is an employment that will bring to light the evidence upon which the truth may be known, and the guilty punished, dishonorable? A statement of ■strong cases wherein good men have no sympathy sometimes aid us to better understand milder ones, as to which the sympathies of men may be divided. We must believe that all good people would commend an ■employment or service that would result in the prompt and sure punishment of persons guilty of these graver crimes, and such persons would as promptly condemn any employment or service which would result in the punishment of the innocent. Then, as to these graver ■crimes, we distinguish these employments by the fruits they bear. If good, we approve. If bad, we disapprove. If correct in this, it must be conceded that there is nothing in the employment itself to condemn it, and such an employe, when a witness, is not to be disbelieved because of such employment. Nor is he to be believed because thereof. But he should be subjected to the same tests as other witnesses to determine his •credibility, by showing what his employment is, and the terms of it, with his interests and motives for giving testimony, true or false ; and thus his testimony should be weighed. Now, why should not the same rule apply to this class of cases? This witness, Mercer, must be regarded as testifying that he knows the saloon kept by the defendant to have been used by him for the sale and keeping of intoxicating liquor, as charged in the petition. Defendant takes no exception as to the form or manner of the testimony, but by stipulation agrees that it may be given in that way. Must the witness be disbelieved merely because the plaintiff or his attorney employed him to go and see if that was true? Would such a rule be applied in any other case ? He further testifies that, on the eighteenth day of August, he bought a glass of whiskey at defendant’s bar; that there were the usual saloon fixtures; government license [488] for the sale of liquors for 1888 ; and that in February, 1889, he was present, and saw persons drinking liquor there. Defendant has not attempted to shake the force of such testimony by cross-examination, as he might have done, and has not himself gone upon the witness stand to deny the truth of it. With his property thus in peril, and his building likely to be closed under the proceedings, we must believe he would have spoken the truth, if it would have been in the interest of its protection. We regard the case, upon the whole, as a practical confession of the defendant’s guilt. It is said that, by the purchase of the glass of whiskey, Mercer aided defendant to commit the crime. The statement is of little weight. The purchase was to discover if the defendant was keeping the liquor there for sale. The sale disclosed the character of his place, and that he was maintaining a nuisance before the sale. If Mercer had induced defendant to do the acts which rendered his place a nuisance, with a view to prosecution, the case might be different. He went there to learn if a nuisance was actually in existence, and for that purpose his act was justifiable. The judgment of the district court is reversed, and a decree will be entered in this court granting the prayer of the petition, and for attorney’s fees for plaintiff in the sum of seventy-five dollars for both courts. Execution to issue from this court. Reversed.