Nixon v. State

• Citation: 138 N.W. 136,92 Neb. 115
• Decision Date: 18 October 1912
• Docket Number: 17,546
• Parties: ARTHUR W. NIXON v. STATE OF NEBRASKA
• Court: Supreme Court of Nebraska

138 N.W. 136

92 Neb. 115

ARTHUR W. NIXON v. STATE OF NEBRASKA

No. 17,546

Supreme Court of Nebraska

October 18, 1912

ERROR to the district court for Richardson county: JOHN B. RAPER JUDGE. Affirmed.

AFFIRMED.

Edwin Falloon, for plaintiff in error.

Grant G. Martin, Attorney General, and Frank E. Edgerton, contra.

OPINION

BARNES, J.

The plaintiff in error, hereafter called the defendant, was tried in the district court for Richardson county on an information containing four counts, in each of which he was charged with the crime of selling spirituous and intoxicating liquors called whiskey without a license. He was found not guilty on the first two counts, and guilty as charged in the third and fourth counts of the information. He was sentenced to pay a fine of $ 300 on each count, together with the costs of prosecution, and to stand committed until the fines and costs were paid. To reverse the judgment of the district court he has brought the case here by a petition in error.

Defendant's first contention is that the evidence is wholly insufficient to sustain the verdict. It appears that the third count of the information charged that defendant did, on or about the 26th day of March, 1911, in the county of Richardson, state of Nebraska, unlawfully and wilfully sell to one Robert Ankrom certain spirituous and intoxicating liquors, to wit one gill of whiskey, without having obtained a license therefor. The abstract, record and briefs show that upon the trial Ankrom testified, in substance, that he was living in Barada on the 27th day of March, 1911, where he had always lived; that he was acquainted with the defendant, Arthur Nixon; that he did not remember whether he was in there on the 26th day of March of that year, but that he visited Nixon's place of business very frequently and frequently drank there. He said: "I can't say I remember of drinking whiskey. I can't tell what it was. If a man drank enough of it, it would intoxicate him. I didn't buy the drink. I drank in there with James Graham on or about the 1st of March. I can't say what I drank, but it was within the last 18 months. I drank with Al Davis. I don't think anybody paid for it. I don't remember what we called for. I don't remember the number. I don't think it was over four. I took one drink with Mr. Davis. I was satisfied with that. I took a drink with Al Davis. The drink was colored like whiskey. I didn't smell it. I tasted it, and it tasted like whiskey. I only took one drink. I suppose the graduate was half full. At the time I drank with Davis, Davis called me up and Nixon waited on me. I have not purchased within the last 12 months any liquor that looked like whiskey. It was the same color. I usually paid 10 cents for a drink. I never bought any by the bottle. I never bought any by the jug. Within the last 12 months I think I have bought something that looked like whiskey and tasted like whiskey, and paid 10 cents for it. I never became intoxicated on it within the last 12 months." The witness also testified on cross-examination that he never bought any whiskey at Nixon's place of business within the last 18 months. "I don't know whether Nixon treated us or not, but I don't think the drink was paid for, not that I know of. I can't swear that this treat was whiskey." On redirect examination the witness further said: "This stuff that I have been drinking at Nixon's place I would not swear it was whiskey. If one drank enough of it he might become intoxicated. I didn't get any of this stuff at Nixon's place in March of this year, nor April. I might of bought some in May. I don't remember the time of the month of May I bought it. I think, if I bought it at all, it was about the middle of the month. I called for medicine. I suppose he understood me. We went into the back room and took it from a bottle. It looked like one of those patent medicine bottles, a square bottle. Sometimes he poured it out, and sometimes I did. Sometimes I paid for it, and sometimes I didn't. I usually paid 10 cents. I didn't tell what particular ailment I wanted the medicine for. I can't tell the jury what it was. He gave me medicine for headache, for dyspepsia, for the appetite, an appetizer. It kind of braced a fellow up."

The fourth count of the information charged that the defendant, in the county of Richardson, and state of Nebraska, on or about the 28th day of March, 1911, did unlawfully and wilfully sell to one Albert Davis certain spirituous and intoxicating liquors, to wit, one gill of whiskey, without having first complied with the laws of the state of Nebraska, and obtained a license therefor. To support that count of the information Albert Davis testified, in substance, as follows: I live north, just across the line of Nemaha county. Was living there during the month of last March. I was in Barada nearly every day along through March, at least three times a week. Am acquainted with Arthur Nixon, and have been in his place of business. I have purchased of him groceries, some hardware and drugs. On or about the 25th day of March I bought something I suppose was whiskey. It was red looking stuff. It was a poor article of stuff whatever it was. It tasted to me like it might have been whiskey, a poor grade of whiskey. Well, if a man would drink enough of it I suppose it would make him crazy. I bought this stuff of him. I paid all kinds of prices, from 10 cents up. I usually paid 10 cents a drink. When I bought it by the bottle I paid from 25 cents to $ 1, owing to the size I bought. When I got this liquor I called for booze. I drank with Bob Ankrom at the time he would not pay the assessment. We drank red-eye booze, and I paid for it. We drank it out of a small like glass, I think it was a wine glass, as well as I remember.

It appears, without dispute, that the defendant was engaged in the business of selling hardware, groceries and drugs in the village of Barada, in Richardson county, Nebraska,...