People v. Kinney

• Citation: 83 N.W. 147,124 Mich. 486
• Court: Supreme Court of Michigan
• Decision Date: 18 June 1900
• Parties: PEOPLE v. KINNEY.

83 N.W. 147

124 Mich. 486

PEOPLE v. KINNEY.

Supreme Court of Michigan

June 18, 1900

Exceptions from circuit court, Van Buren county; Harsen D. Smith, Judge.

Matthew Kinney was convicted of selling fermented liquor, and he appeals. Affirmed.

T. J Cavanaugh, for appellant.

Horace M. Oren, Atty. Gen., and James E. Chandler, Pros. Atty., for the People.

LONG J.

The local option law is in force in Van Buren county. The respondent was convicted under an information charging him with having on the 5th day of October, 1899 at the township of Decatur, Van Buren county, sold and furnished to S. C. Mabury and Edward Bass a certain quantity of fermented, spirituous, and intoxicating liquors, to wit one gallon of hard cider. The people offered proofs tending to show that, on the evening of October 5th, Mabury and Bass went where respondent resided, and there, in his cellar purchased from him one gallon of fermented cider, paid for it, and went back to the village of Decatur. One Barney Mahoney testified that he followed Mabury and Bass to the respondent's place, saw them come out of the place, and followed them to Decatur village, where he tested the cider; that it was hard cider,--fermented cider; that he then took some and corked it up in a bottle. Mabury and Bass testified that after tasting some of the cider they asked respondent if he did not have some that was harder; that he gave them some, and that thereafter Mabury tasted it and corked it up in a bottle; that they did not ask for sweet cider, but hard cider. On the trial the bottle of cider corked up by Mahoney was produced, and Mahoney testified that it was in about the same condition as when he put it in the bottle. The respondent testified that this cider was made September 28, 1899; that Mabury and Bass asked for a gallon of cider to be used in making mince pies; that he furnished it, and received 15 cents therefor; that it was cider made on September 28th, and was not hard cider, but sweet cider. He also called other witnesses who testified that it was made at that time, and was sweet cider. After Mahoney had given his testimony, the prosecution offered the bottle of cider in evidence. Counsel for respondent objected to this offer on the ground that it was incompetent, irrelevant, and immaterial. The court said: 'Unless the evidence in this case shows that the contents of this bottle is in the same condition it was on October 5th, it would be of no value as evidence; but, if the evidence has any tendency to show it in the same condition, it would be admissible.' It was received in evidence, and the court then said: 'There is a tumbler, gentlemen, if you want to taste of it,--any of you.' Respondent's counsel objected to these remarks of the court, instructing the jury that they might taste it. The argument of respondent's counsel here is that if the jury, by tasting it, smelling, or drinking it, as they were ordered by the court, thereby acquired knowledge or formed opinions of its properties, as to whether it was hard or fermented cider, those tasting or smelling it could not give evidence to their fellow jurors without being sworn. There is nothing in the record showing or tending to show that any of the jurors smelled or drank of it, nor is there any evidence that the bottle was placed in their hands for examination. The record is entirely silent upon that subject; but, even if it had been handed them and they had tested it, we think it would not have been error. The testimony of Mahoney, who put it in the bottle, tended to show that it was in about the same condition as when sold by the respondent.

It is claimed that the court erred in refusing to permit the witness Mott to answer certain questions put to him by respondent's counsel. Mr. Mott testified: 'I always handle a little cider for my own use. Cider put in the kind of bottle in evidence in this case would grow harder from day to day. Mr. Chandler: I object to it as incompetent irrelevant, and immaterial, until this man is shown to be an expert. Mr. Cavanaugh: He is as much of an expert as Barney Mahoney is. Mr. Chandler: I move to strike out the answer. The Court: I should think that would be a matter for an expert. I don't think that the evidence shows that this witness is an expert. Mr. Cavanaugh: Does your honor rule the question out? The Court: Yes. Mr. Cavanaugh: I will take an exception to the ruling of the court. Witness: I have handled cider to soem extent, and have kept the same. I have watched it to know how it conducted itself from...