People v. Cox

• Decision Date: 11 May 1888
• Citation: 38 N.W. 235,70 Mich. 247
• Court: Michigan Supreme Court
• Parties: PEOPLE v. COX.

38 N.W. 235

70 Mich. 247

PEOPLE v. COX.

Supreme Court of Michigan

May 11, 1888

Error to circuit court, Jackson county; G. T. GRIDLEY, Judge.

Information charging John Cox with keeping his saloon open on Sunday. Defendant was convicted, and brings error.

Moses Taggart, Atty. Gen., for appellee.

MORSE J.

The respondent kept a saloon in the city of Jackson, on Courtland street. He was not married, but hired a housekeeper, and his father lived with him. The rooms over the saloon were used as sleeping rooms. The first or lower story of the building was divided into rooms and halls as follows: First, a front room known as the "bar-room," with a front door, the only one opening upon the street from that room. A door in the back part of the bar-room opened into a hall. Upon the left of this hall was a card-room. Back of that another room used as a kitchen. There were no doors from the outside into either the card-room or kitchen. Both were reached from the hall. To the right of the hall, and opposite the kitchen, was a store-room, under the stairs leading to the upper story of the building. In this store-room, having no cellar, the respondent kept beer in kegs. When he wanted beer for his customers he drew it from these kegs into bottles, and carried it in the bottles into his bar-room. Back of this kitchen and store-room is a dining-room, a large room, having an outside door upon each side, not far from the partition between it and the other rooms, and also a back door. The respondent was tried and convicted in the Jackson county circuit court upon an information charging him, on the 20th day of November, 1887, Sunday, with keeping open his saloon or, in the language of the information, that he "did not keep said saloon and bar and other places in the same building closed on said 20th day of November, A.D. 1887, said day being the first day of the week, commonly called 'Sunday,' but did keep the said saloon, bar, and other places in the said building open on said day, the said John Cox not being then and there a druggist," etc. See section 17, Pub. Acts 1887, No. 313 at page 455. Evidence was offered and permitted to be given showing different times during the day when the place was open, and people inside. The first witness for the people, one John Gessner, testified that he entered the respondent's place at the back door about 9 o'clock A. M. The door was not locked. "The defendant was there, and Nellie Cox and four men." He was then asked. "Was you in there again the same day?" This question was objected to on the ground that by the testimony of the witness one specific act had been fixed, and that any repetition would be a distinct and separate act under the statute, and therefore not admissible, being evidence of another and separate offense. The objection was overruled. The counsel for the respondent insists that this was error. He claims that "not keeping closed" means that the saloon "was open," and that as many separate and distinct offenses can be committed on Sunday under the statute as there are times that the saloon is found open or proven to have been opened. He bases his argument principally upon another section of the act which provides that "each violation of any of the provisions of this act shall be construed to constitute a separate and distinct offense, and for each violation on the same day, or on different days, the person or persons offending shall be liable to the penalties and forfeitures herein provided." Pub. Acts 1887, (act No. 313, � 7, p. 450.) It is not necessary, under section 17 of this act, to prove that any liquor was sold. Both sections 7 and 17 are similar to the law of 1881 in defining the offenses and penalties. See act 259, Sess. Laws 1881, �� 5, 6, (How. St. �� 2274, 2275.) The offense of keeping a saloon not closed or open, under the statute last cited, has been passed upon by this court in a number of cases. In People v. Blake, 52 Mich. 566, 18 N.W. 360; People v. Higgins, 56 Mich. 159, 22 N.W. 309; People v. Baumann, 52 Mich. 584, 18 N.W. 369; and People v. Cummerford, 58 Mich. 328, 25 N.W. 203, the testimony showed, as in this case, persons in and frequenting the places where liquor was sold several times during the day or night.

We are all of the opinion that the law contemplates but a single offense upon Sunday. The saloon is to be closed all day, and the opening of the same once or a dozen times is the same in the eye of the law. If it is not closed all day, the law is infracted, and if it is open all day the law is broken. The statute is violated by its not being closed, and the law does not ordinarily divide a day unless the intent of the legislature is clear. If we should hold otherwise, it might be difficult in proof to separate the offenses, and make them distinct one from the other, and a man might be convicted and fined several times for opening his saloon several times for a few moments to give one man a drink and then closing it again, while one who keeps his place notoriously open from morning to night, accessible to everybody, and full of people drinking and carrousing all day, could only be punished for one offense under the law. Section 7 evidently was intended to apply to violations of the act for the selling of the liquors where each sale is an infraction of the law and punished as a separate offense, such as the sale to minors persons in the habit of getting intoxicated, and the like. In such cases the day or time is not material. It is the sale to the person that is prohibited, and a man may sell to 20 or more of such persons in one day and be punished for each individual sale. It is also claimed that the court erred in permitting a witness, John Boyle, to testify upon rebuttal to his visiting the saloon in the evening, and to state whom he saw there. It is argued that this evidence should have been offered upon the examination in chief, as the main case of the prosecution consisted in showing the saloon open, and other persons therein beside the respondent and his family. The defense had introduced one Snyder, who testified that he went to the saloon on Sunday forenoon and tried to get some beer, and defendant refused to furnish him any. He also testified on behalf of the prosecution on the direct part of the case that he went there on Sunday evening with Boyle, and saw certain persons there. The circuit judge, on the rebuttal, allowed Boyle to testify whether or not there were other persons there than those specified by Snyder. This was the extent of the evidence. Boyle should have more properly been sworn when the people made their case, as his testimony did not tend to rebut anything that had been sworn to by Snyder, when he was a witness for the defense. But such matters are generally within the discretion of the court, and will not be interfered with unless the discretion is abused to the prejudice of the respondent. As Snyder testified that one person beside the family was there, which would be a violation of the statute as much as if a dozen were there, it cannot be seen how the respondent could have been harmed by the testimony of Boyle that more than that were there. We do not feel justified in reversing the judgment for this reason alone. The court was requested to instruct the jury as follows: "(2) That if the bar and its supplies and the appliances of the business of liquor selling were in rooms distinct from others, and the latter were used as the place of residence of the defendant, he would have a right to keep the latter open, and to make use of them for living purposes on Sunday as well as on other days. (3) The mere fact that persons did occasionally pass through the rear or sitting-room to reach the bar-room on week days does not make the defendant guilty on account of making lawful use as a dwelling-house of these rooms, and in keeping them open on Sunday as on other days. (4) There is no evidence that the rooms so open on the Sunday in question were used or occupied as a part of the saloon, and for the carrying on of the liquor business. (5) If the fourth request be not given, then the court is requested to instruct the jury that occasionally allowing persons to pass through the rear room to the bar-room, or even to sit down in one of the rear rooms and drink liquor furnished from the bar at times when such sales are lawful, would not make the defendant guilty of a violation of the law in not closing such rooms on Sunday, if he used them for dwelling purposes, and they were kept actually shut off from the bar-room, and place where liquors were kept, on Sunday, and at times when said saloon is required to be kept closed. (6) An occasional use of said rooms in...