Fruide v. State
| Decision Date | 06 November 1902 |
| Docket Number | 12,670 |
| Citation | 92 N.W. 320,66 Neb. 244 |
| Parties | FRANK FRUIDE v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR from the district court for Polk county. Tried below before SORNBORGER, J. Reversed.
REVERSED AND REMANDED.
Mills & Mills and King & Bittner, for plaintiff in error.
Frank N. Prout, Attorney General, and Norris Brown, for the state.
OLDHAM C. BARNES and POUND, CC., concur.
In this case the defendant in the court below was prosecuted on an information charging him with selling intoxicating liquors in violation of section 11, chapter 50, [*] Compiled Statutes of Nebraska. There were seven counts in the information. The defendant was found guilty on two counts, and from the judgment and sentence on these counts, brings error to this court.
One of the alleged errors called to our attention in the brief of plaintiff in error, defendant below, is the action of the trial court in permitting the state to show that the defendant had in his place of business a United States internal revenue stamp, commonly called a government license for the sale of intoxicating liquors during the year 1901. The only objection interposed to the admission of this evidence was that the revenue stamp appeared to have been seen in defendant's possession in the month of August, while the sales charged were alleged to have taken place in the month of September. No objection was made however, as to the relevancy or competency of the evidence, and later, when the defendant testified in his own behalf, the state was permitted, without objection, to inquire into his possession of this revenue stamp or government license. The defendant was also permitted to explain his purchase of this revenue stamp on a theory in harmony with his claim that he had no intoxicating liquors at his place of business. We think it is competent, in a prosecution under section 11, chapter 50, to show that the defendant kept in his place of business a United States internal revenue stamp or government license merely as a circumstance tending to show that he was engaged in the business of vending intoxicating liquors. We also think that when such evidence is admitted on the part of the state, it is proper for the court to permit the defendant to explain this circumstance on a theory consistent, if possible, with the claim that he had no intoxicating liquors at his place of business. This the court appears to have done in the trial of this case, and by an instruction confined this testimony strictly to the purpose for which it was admitted. We think, under this state of the record, that the action of the trial court was fully warranted.
In our view, a more serious question is presented by the action of the trial court in refusing paragraph No. 1 of instructions requested by the defendant below, and giving in its stead paragraph No. 9 of instructions on its own motion. In the prosecution of this case, the state was compelled to rely for the proof of the sales charged solely on the testimony of two members of a detective association at Lincoln, who admitted that they had been employed to procure testimony against the defendant by the officers of another association in that place. On the other hand, the defendant relied solely on his own testimony and the testimony of his wife in denial of the evidence of these detectives. There was some effort made to corroborate each side of the controversy, but there was nothing introduced that could be construed as a corroboration of the state's witnesses, unless it was the possession of the government revenue stamp, which the defendant admitted, and, as we have before indicated attempted to explain on a theory consistent with his claim that he had no liquor at his place of business. It seems to us that in this state of the record an instruction with reference to the care and caution that should be taken in weighing the testimony of hired detectives should be given with all the force and virility that this court has ever exacted. Paragraph No. 1 of instructions requested by the defendant below was drafted in the language of an instruction on...
To continue reading
Request your trial