State v. Hoxsie

• Decision Date: 04 April 1885
• Citation: 22 A. 1059,15 R.I. 1
• Parties: STATE v. HOXSIE et al.
• Court: Rhode Island Supreme Court

22 A. 1059

15 R.I. 1

STATE

v. HOXSIE et al.¹

Supreme Court of Rhode Island.

April 4, 1885.

Exceptions from court of common pleas, Providence county.

George W. Hoxsie and Albert E. Hoxsie were indicted for maintaining a liquor nuisance. They were convicted, whereupon they brought the case to the supreme court on exceptions. Exceptions overruled.

Benjamin M. Bosworth, Asst. Atty. Gen., for the State.

Crafts & Tillinshast, for defendants.

DURFEE, C. J. This case comes up on exceptions from the court of common pleas. It is an indictment for nuisance, under Pub. St. R. I. c. 80. The indictment was found and tried at the May term, 1884. The first exception is for the refusal of he court below to allow the defendants to ask one of the jurors called to sit in the trial, on his voir dire, "whether he had contributed money for the purpose of prosecuting persons charged with keeping liquor nuisances, and having them bound over to the court of common pleas for indictment at said May term." The contention is that the juror was open to challenge if he had so contributed. It will be noticed that the question was not whether the juror had contributed money for the purpose of having the defendants prosecuted and bound over,—the record does not show in fact that the defendants had been bound over,—but whether the juror had contributed for the prosecution of persons generally who were charged with keeping nuisances.' If the question had been allowed and had been answered affirmatively, the answer would show, not any personal hostility to the defendants, but only that the juror was an earnest temperance man, who had demonstrated his zeal in the cause by giving of his means to aid in the enforcement of the law against the illegal sale of intoxicating liquors. The fact that he had given money would not affect him with any pecuniary interest in the conviction of the defendants. We do not see, therefore, how he could be challenged off the jury, unless every strong temperance man is liable to be challenged off simply because he is a strong temperance man, anxious to have the law enforced. In Com. v. O'Neil, 6 Gray, 343, it was held that members of an association for the prosecution of a certain class of offenses, who had subscribed to the funds of the association, were not incompetent to sit as jurors on the trial of a prosecution of an offense of that class commenced by the agent of the association and carried on at its expense, inasmuch as it did not appear but that they had paid their subscription before the prosecution was commenced, though the court remarked that it might have been well if the presiding judge had in his discretion excused the jurors. The case is much stronger than the case made here. And, to the same or like effect, see State v. Wilson, 8 Iowa, 407; Musick v. People, 40 Ill. 208; Boyle v. People, 4 Colo. 176; Com. v. Thrasher, 11 Gray, 55, Thomp. & Mer. Juries, § 181. The first exception must be overruled.

The other exceptions are for refusals by the presiding judge to give certain instructions to the jury as requested by the defendants. We do not think the court is bound, even when the instructions requested are proper, to give them in the language of the requests; for the language, though perfectly correct, may be such that a jury would not readily understand it. One of the instructions requested and refused was "that the sale of intoxicating liquor on divers occasions at a place or tenement is not conclusive evidence that the sale was illegal, unless the state prove that the defendants at the time of said sales had no license." The language implies that it was necessary for the state, for the purpose of convicting the defendants, to establish their guilt conclusively, and not simply beyond a reasonable doubt. We think, therefore, that the instruction was rightly refused. The statute (Pub. St. R. I. c. 80, § 3) provides that "evidence of the sale or keeping of intoxicating liquors for sale in any building, place, or tenement shall be evidence that the sale or keeping is illegal;" and we see no reason why a jury might not be satisfied beyond a reasonable doubt, by the mere proof of the sale, that the sale was illegal, since it would be unnatural, not to say unreasonable, for the accused, if he had a license, not to produce it. And see State v. Higgins, 13 R. I. 330; State v. Mellor, Id. 666.

The bill of exceptions sets forth that at the trial testimony was introduced by the state going to show that, during the time covered by the indictment, intemperate persons were in the habit of resorting to the shop complained of, and that the implements and appurtenances which are usual in a grog-shop or tippling-shop were there. The defendants requested the presiding judge to charge the jury that "the notorious character of the defendants' premises, or the notoriously bad or intemperate character of persons visiting the same, or the keeping of the implements or appurtenances usually appertaining to grog-shops, tippling-shops, and places where intoxicating liquors are sold, is not prima facie evidence that such places are nuisances. The judge refused, on the ground that the request was inapplicable, and did instruct the jury that they must be satisfied of the truth of the charge. The statute makes the matters mentioned in the request evidence of a nuisance, but not prima fa...