State v. Dominico Costa
| Decision Date | 20 November 1905 |
| Citation | 62 A. 38,78 Vt. 198 |
| Parties | STATE v. DOMINICO COSTA |
| Court | Vermont Supreme Court |
October Term, 1905.
INFORMATION for keeping intoxicating liquor with intent to sell the same without authority. Plea, not guilty. Trial by jury at the June Term, 1905, Caledonia County, Munson, J presiding. Verdict, guilty; judgment and sentence thereon. The respondent excepted.
Judgment that there is no error in the proceedings, and that the respondent take nothing by his exceptions. Let execution be done.
Harland B. Howe for the respondent.
Present ROWELL, C. J., TYLER, WATSON, HASELTON, and POWERS, JJ.
This was an information for keeping intoxicating liquor with intent to sell the same without authority. The evidence on the part of the State tended to show that the respondent kept a fruit and cigar store "and sold soda and soft drinks," and that June 24, 1905, one A. H. Noyes searched said store and found in the cellar a large quantity of "Red Cross Canada Malt Extract" put up in pint bottles, and that he found three bottles of the same on a shelf in the store, and one bottle in the show window. The time of this search is the time of the alleged offence. Noyes testified, under objection and exception, that he made the search referred to and found the malt extract while acting under a warrant to search the respondent's store for intoxicating liquor. The objection was that the search warrant and the return thereon were the best evidence. As to the return it is enough to say that in this proceeding it was not admissible against the respondent. Noyes might have used it to refresh his recollection and the respondent might have cross-examined from it, and if it was inconsistent with the testimony of Noyes the respondent might have made another use of it, but the man who made the search was properly called to testify to the finding of the malt extract and the circumstances in which it was found. One of these circumstances, the finding of a bottle of the extract in the show window, was favorable to the respondent.
But it is urged that the witness should not have been allowed to testify that he made the search by virtue of a warrant to search for intoxicating liquor; that the warrant should have been produced. However, the character and sufficiency of the warrant were not in issue. The witness was merely explaining how he came to be hunting over the respondent's cellar and other premises. It is often impracticable for a witness to testify as to his doings without referring in a general way and by its proper designation to some writ, warrant, execution, chattel mortgage, book or other document; and there is no rule of law which, properly interpreted, makes it error for a witness to do so without producing the document when the contents of the document are not the subject of inquiry and are not material to any question raised. The respondent concedes that the witness might well enough have said that he was at the respondent's store by virtue of a warrant, but urges that the witness prejudiced the respondent by saying that he was acting under a warrant to search for intoxicating liquor. But if the witness had simply testified that he had a warrant, the respondent might have argued that the jury were left to infer that there was a warrant out for the arrest of the respondent or for the search of his store for some purpose not connected with the very charge for which he was on trial. If the witness had left his testimony in the way in which it is said by respondent's counsel that he should have left it, the respondent might have argued that he was prejudiced in respect to his general character.
It is undoubtedly true that there is danger of prejudice against a respondent because he stands in court under arrest charged with a criminal offence, since it is well understood that under our system he could not be in that situation unless there was some evidence or supposed evidence against him. It is for this reason, more than any other, that the doctrine of the presumption of innocence is maintained in this jurisdiction as something distinct from the doctrine of reasonable doubt. And so in this case the court not only charged fully and correctly with regard to reasonable doubt and the presumption of innocence, but also particularly charged the jury that the facts that the charge for which the respondent was on trial had been brought against him and that he was on trial therefor were not to be taken against him.
The evidence tended to show that the extract, to the finding of which the testimony of Noyes related, contained about four per cent. of alcohol and that the respondent kept it for sale, and there was no claim or evidence to the contrary. But the main question in the case was whether the respondent kept this malt extract to sell for medicinal uses only, or whether he kept it to sell for use as a beverage. Several exceptions relate to the claim that the respondent was unduly restricted in proving that the malt extract was a legitimate proprietary medicine which might properly be sold for medicinal uses; and that the tendency of the evidence in that regard was not satisfactorily presented to the jury; but the case shows otherwise. The respondent himself testified that he was a wholesale and retail dealer in patent medicines, that this extract was such a medicine, that he did not keep it for sale as a beverage. Dr. E. W. Hitchcock of St. Johnsbury gave evidence tending to show that the malt extract "was sold and used as a proprietary medicine to a great extent, that it was generally prescribed by physicians, that it was used to a large extent as a medicinal tonic." The facts which this evidence of Dr. Hitchcock tended to show were treated as established, for the court charged the jury, in substance, that there was no question in the case but that the malt extract is a legitimate medicine frequently prescribed by physicians and extensively sold in the drug trade.
The court charged further that "a preparation of this kind may be manufactured for a lawful purpose and be kept and sold as a medicine without violation of law." Indeed, there is considerable more in the charge to the same effect.
The respondent called as a witness one Harris, a member of the firm which manufactures the Red Cross Canada Malt Extract, and he testified to the effect that his firm manufactures various other proprietary medicines, among them Harrisonia, sarsaparilla, and a preparation of beef, iron and wine. In the course of the testimony of this witness the respondent offered to show "the percentage of alcohol in the other proprietary medicines which his firm manufactured and sold for the same purpose as said extract, and particularly that beef, iron and wine contained 50 per cent. of alcohol, for the purpose of comparing this extract, which was one of said proprietary medicines, with said other proprietary medicines, and as tending to classify and characterize it as a patent or proprietary medicine." The offered evidence was excluded. By the same witness the respondent offered to show that two grocers and three druggists in St. Johnsbury had for a long time sold this malt extract openly and visibly "as tending to characterize the article as a patent or proprietary medicine and to show its general use as such." Evidence under this offer was excluded. The respondent also offered to show by the same witness that this malt extract "was compounded and put upon the market to be used and administered for the same purposes and for the same general use as said other proprietary medicines which his firm manufactured." The offered evidence was excluded.
These rulings of the court excluding offered evidence from the witness Harris were not erroneous. Evidence as to beef, iron and wine, Harrisonia, and the other proprietary medicines manufactured and sold by the firm which manufactured the malt extract, and of the doings of a few dealers in St. Johnsbury would have been wholly immaterial, though it might have been misleading.
After Dr. Hitchcock had given the evidence above referred to tending to establish the character of the malt extract as a legitimate medicine, prescribed as such by physicians, and lawfully sold and used for medicinal purposes, the respondent offered to show by the doctor: (1) "that this malt extract was used by the medical profession and by people generally for the same purposes as sarsaparilla, Paine's Celery Compound, Peruna, and beef, iron and wine; (2) that Peruna contained from 50 to 61 per cent. of alcohol, beef, iron and wine from 25 to 30 per cent. of alcohol; (3) that a person could not become intoxicated upon Peruna, beef, iron and wine, or this extract." Each of these three offers was made and excluded separately, but all were made "as tending to compare this extract with other patent or proprietary medicines as to its composition, general use, effect upon the system, and to classify and show its use as a patent or proprietary medicine." But these comparisons would have been irrelevant and would have had a tendency to get before the jury evidence with regard to various preparations, more or less popular as remedies, in a way that would have had a tendency to lead the jury to decide the case upon erroneous grounds.
The court, however, permitted the actual amount of alcohol and of the other ingredients of the extract to be shown, and properly did so, for the character of a liquid containing more than one per cent. of alcohol may be such that its use as a beverage is impossible, as is the case with some virulent poisons. The mere fact that a liquid can be and is swallowed does not make it a beverage....
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