State v. La Rose

• Decision Date: 03 June 1902
• Citation: 52 A. 943,71 N.H. 435
• Parties: STATE v. LA ROSE.
• Court: New Hampshire Supreme Court

52 A. 943

71 N.H. 435

STATE

v. LA ROSE.

Supreme Court of New Hampshire. Hillsborough.

June 3, 1902.

Transferred from superior court; Peaslee, Judge.

Louis E. La Rose was indicted for a second offense of illegally keeping liquor for sale on September 1, 1901. Trial by jury, and verdict of guilty of a first offense. The indictment alleged a prior conviction on May 15, 1901. The state's evidence tended to prove the following facts: The defendant keeps a drug store in Nashua. The place was searched Sunday, September 1st The officers found one man sitting in the front store, and two others in a small side room. A clerk was just coming from the back store with a bottle in his hand, and, when he saw the officers, he placed the bottle on a shelf in the back store, and came out, and locked the door. The clerk at first refused to open the door upon the officer's demand, but later did so. In the back store the officers found several casks and jugs of various sizes containing spirituous liquor, a large number of sealed quart bottles of whisky, and empty bottles of various kinds and sizes. Upon the shelf, where the clerk put the bottle when he saw the officers, they found a bottle of brandy, which they identified as the bottle put there by him. The defendant paid a United States tax as a retail dealer in spirituous liquors for the year beginning July 1, 1901, and for several years prior thereto. Subject to the defendant's exception, the state was permitted to show that upon May 15, 1899, he pleaded nolo contendere to a charge of keeping spirits for sale at the same place. There was no evidence of a prior conviction. The defendant moved to quash the indictment, on the ground of variance, and also to direct a verdict in his favor, upon the ground that there was no evidence of an intent to sell contrary to law. Both motions were denied, subject to exception. Exceptions overruled in part.

James P. Tuttle, for the State.

Doyle & Lucier, for defendant.

PARSONS, J. The only variance between the indictment and the proof was the absence of evidence tending to sustain the allegation of a prior conviction. Omitting this allegation, the indictment charged an offense which was sustained by the evidence. The allegations were several. Sufficient being proved to establish an offense alleged in the indictment, the respondent was properly convicted of the offense proved. State v. Small, 64 N. H. 491, 492, 14 Atl. 727; State v. Thornton, 63 N. H. 114, 115; State v. Webster, 39 N. H. 96; State v. Dorr, 82 Me. 341, 19 Atl. 861; Palmer v. People, 5 Hill, 427; Rose. Cr. Ev. 99, 100. The amount of liquors on hand, the place, the defendant's store for the sale of goods, the action of the clerk when he saw the officers, the payment of a tax as a retail dealer, which was not required if the liquors were kept only for use in compounding medicines (Rev. St. U. S. § 3246), are facts tending to establish that the liquors found were not kept merely for the defendant's personal use, or solely for compounding medicines (Pub. St c. 135, § 9), but were kept for sale. The motions to quash the indictment and to direct a verdict for the defendant were properly denied.

The only exception remaining which it is necessary to consider is that taken to the admission in evidence of the fact that May 15, 1899, the defendant pleaded nolo contendere to a charge of keeping spirits for sale at the same place. Proof that the respondent has previously committed, or been charged with the commission of, a crime similar to that for which he is on trial is not evidence of his guilt of the crime in question. State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69. But the fact that the evidence discloses the commission of other crimes does not render it incompetent, if it has some tendency to prove a material fact in issue. State v. Palmer, 65 N. H. 216, 218, 20 Atl. 6. The intent with which the spirituous liquors found upon the defendant's premises were there kept was a material question at the trial. Any evidence otherwise competent having probative force upon this issue was relevant. "Where there is a question whether a particular act was done, the existence of any course of business according to which it naturally would have been done is a relevant fact." Hall v. Brown, 58 N. H. 93, 96. Evidence that the respondent kept ale for sale in his house at a certain time is competent on the question whether spirits kept there then were kept for sale. State v. Gorman, 58 N. H. 77. Evidence of prior sales to others is competent on the question whether the respondent sold to A. State v. Welch, 64 N. H. 525, 15 Atl. 146; State v. Shaw, 58 N. H. 73. Upon the trial of a complaint for keeping spirituous liquors with intent to sell the same, evidence of sales of other spirituous liquors at the same place is competent. State v. Raymond, 24 Conn. 204. In Philpot v. State, 65 N. H. 250, 20 Atl. 955, the defendant had been released upon a suspended sentence, upon condition that he should not engage in the illegal business of selling liquor, of which he had been convicted; and it was held, upon the authorities above cited, that his conviction upon a plea of nolo contendere to an indictment charging the illegal keeping of liquor for sale at a time subsequent to his former sentence was evidence from which his nonperformance of the condition could be Inferred. If this conclusion can be sustained upon the ground upon which it was apparently placed, it is decisive upon the present question. Read in the light of the authorities cited, to which reference has been made, the decision seems to have been placed upon the ground that, from the conviction upon the plea of nolo, the inference may be drawn that the defendant would not have pleaded nolo, and suffered a Judgment of conviction, unless he had in fact been guilty; and hence the decision appears to construe this plea as an admission of the truth of the facts charged for other purposes than the case in which it was made. In the case at bar, evidence that upon some date other than the day in question, considered not too remote by the trial court, the defendant kept the same, or similar liquors, at the same place, with guilty intent, would be competent as tending to prove the liquors then there were so kept. An admission by the defendant of the intent with which he kept such liquors at the prior date would be evidence against him. In this case there was no evidence of a judgment of conviction against the defendant, if one was had, and the only question is whether the plea of nolo is an admission of the truth of the facts charged. That it is appears to have been assumed without examination by the court in Philpot v. State. So far as the proceedings upon the indictment itself, and the results dependent upon the judgment which follows from a conviction, a plea of nolo contendere has the same legal effect as a plea of guilty. State v. Fagan, 64 N. H. 431, 14 Atl. 727; U. S. v. Hartwell, 3 Cliff. 221, Fed. Cas. No. 15,318; Com. v. Horton, 9 Pick. 206. It is an elementary rule that a judgment is not evidence of the facts adjudicated by it, except between the parties to it and those in privity with them. But in trespass for assault and battery, a record of conviction upon a plea of guilty to a criminal complaint for the same act is admissible (Green v. Bedell, 48 N. H. 546); while if the conviction be upon a plea of not guilty, the record is not admissible (Caverno v. Jones, 61 N. H. 623, 624). The evidentiary force arises, not from the judgment, but from the plea, which, if guilty, is a confession of the truth of the charge, and hence admissible in other proceedings. Burgess v. Burgess, 47 N. H. 395. If a plea of nolo contendere has the same effect, it differs in no respect from a plea of guilty. The existence of the two pleas is evidence that there Is, or was supposed to be, some distinction between them. That they differ materially appears from the authorities. The...