Duff v. State
| Decision Date | 05 March 1918 |
| Docket Number | Criminal 430 |
| Citation | 19 Ariz. 361,171 P. 133 |
| Parties | LARRY DUFF, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the county of Yavapai. Frank O. Smith, Judge. Affirmed.
Mr Robert E. Morrison, for Appellant.
Mr Wiley E. Jones, Attorney General, and Mr. Geo. W. Harben and Mr. R. W. Kramer, Assistant Attorneys General, for the State.
The appellant was convicted of a violation of the prohibition amendment. On the twenty-second day of May, 1916, about 10 o'clock in the evening, one R. H. Bryant and his wife went into Birch Bros. restaurant in the city of Prescott entering the restaurant through a rear door and occupying one of the booths reserved for patrons of the place. It appears that in connection with this restaurant the Birch Bros. have a room equipped with bar fixtures, pooltables and other paraphernalia usually found in a saloon, the bar being used ostensibly for the purpose of selling soft drinks or nonintoxicating beverages. The appellant, Larry Duff, was employed by Birch Bros. to sell and serve beverages at this bar, and, on a call from patrons in the booths adjoining the restaurant to take drinks into those private rooms for them. It appears from the testimony of the prosecution that the plan or scheme of the Birch Bros. to evade the law was to sell whiskey, or other intoxicating liquors, to the patrons of the place under the subterfuge of selling ginger ale. On the evening in question, Bryant and his wife purchased from appellant 14 drinks. These drinks were served in glasses each containing about six ounces of liquid. Seven of the drinks were served to Bryant, and an equal number to his wife. Appellant admits serving these drinks to the Bryants on this occasion, but unequivocally asserts that the glasses placed before them contained nothing but ginger ale with the addition of a suitable amount of ice to each glass thereof; that he served them with no intoxicating liquor whatever. The Bryants, however, are equally positive that the ginger ale contained in the glasses served to them by Duff contained intoxicating liquor disguised in the ginger ale. They drank portions of the liquid out of each of the glasses, and, when testifying, described with minute particularity the intoxicating effect of the liquor. In addition to this, the Bryants brought with them into the booth an empty pint bottle. In this empty bottle they poured portions of the liquid from each of the glasses served to them by Duff until the bottle was nearly full, whereupon they took it to their room in the hotel and, after pouring a small part of its contents into a smaller bottle, sealed up the larger bottle with its contents. This liquor was afterward analyzed by a chemist, and found to contain approximately forty per cent alcohol. These bottles of liquor were put in evidence over the objection of appellant; the ground of objection being that they were not sufficiently identified. There is no merit in the objection because the identity of the exhibits was established with a great degree of precision.
Appellant complains because the court allowed a drinking glass containing a piece of putty to be admitted in evidence. The Bryants had testified as to the amount of ice that was in each glass containing the liquor when served to them. The purpose of the putty was merely to represent the approximate amount of ice in each glass and illustrate to the jury the liquid contents thereof when the quantity of ice was subtracted. The Bryants testified clearly as to the amount of ice served with each drink, and the exhibit had slight, if any, probative force, but the jury were entitled to have the benefit of the exhibit for what it was worth. The argument that it was the duty of the court to require the prosecution to have ice brought into the courtroom, cracked there and the precise amount placed in each glass, is not convincing. The county attorney, against the objection of appellant, offered to prove by the sheriff of Yavapai county how much money the county had paid out for detective services in the prosecution of bootleggers and the amount of profit the county had earned since the first day of January, 1915, by reason thereof. This is assigned as error, but the court rejected the offer of proof, and very emphatically told the jury to disregard it and not give it any consideration in arriving at their verdict. Conceding that it was error to make such an offer, it was cured by the ruling of the court and its instruction to the jury.
One of the most vigorous attacks...
To continue reading
Request your trial
-
State v. Lambright
...who are involved in upholding the law are jury matters. See Baumgartner v. State, 20 Ariz. 157, 178 P. 30 (1919); Duff v. State, 19 Ariz. 361, 171 P. 133 (1918). In the instant case it was not the prosecutor who was trying the case who appeared as a witness, but another person from the same......
-
State v. Webster
...v. State (Ala.), 39 So. 580; Swoope v. State, 12 Ala. App. 297, 68 So. 562; Strother v. State, 15 Ala. App. 106, 72 So. 566; Duff v. State, 19 Ariz. 361, 171 P. 133; People v. Barkdoll, 36 Cal.App. 25, 171 P. Simmons v. People, 70 Colo. 262, 199 P. 416; Gordon v. State, 7 Ga.App. 691, 67 S.......
-
Whittington v. State
... ... Circuit Court of Appeals of the United States, and most of ... them sustain the annotator. Goldstein v. United ... States, 256 F. 813; Fetters v. United ... States, 260 F. 142, certiorari denied in 1919, 251 U.S ... 554; Borck v. State, (Ala.) 39 So. 580; ... Duff v. State (Ariz.), 19 Ariz. 361, 171 P ... 133; Evanston v. Meyers (Ill.), 172 Ill ... 266, 50 N.E. 204; Com. v. Graves, 97 Mass ... 114; People v. Everts (Mich.), 112 Mich ... 194, 70 N.W. 430; State v. Gibbs (Minn.), ... 25 L.R.A. 449; State v. O'Brien ... (Mont.), 10 Ann. Cas. 1006; ... ...
-
Marshall v. State
...v. State, 26 Ariz. 102, 222 P. 414; Encinas v. State, 26 Ariz. 24, 221 P. 232; Waddle v. State, 27 Ariz. 68, 229 P. 944; Duff v. State, 19 Ariz. 361, 171 P. 133. order to understand the claimed error in the admission of testimony, it will be necessary to briefly outline a few of the salient......