State v. Spengler

• Decision Date: 16 November 1896
• Citation: 21 So. 4,74 Miss. 138
• Court: Mississippi Supreme Court
• Parties: STATE, USE, ETC., v. H. SPENGLER, SR., ET AL

21 So. 4

74 Miss. 138

STATE, USE, ETC., v. H. SPENGLER, SR., ET AL

Supreme Court of Mississippi

November 16, 1896

October 1896

W Calvin Wells, for appellant.

In the case of Rightor v. Beaumont, 67 Miss. 285, this court says, "A motion to exclude all the evidence of a party should be sustained only where it is clearly and unmistakably insufficient to sustain the issue, " and in the case of Chicago, etc., Railroad Co. v. Doyle, 60 Miss. 977, this court uses this language: "When the facts are disputed, or the just inferences from disputed facts are doubtful, depending upon the general knowledge and experience of men, it is the judgment and experience of the jury, and not of the judge, which is to be appealed to;" and, in the case of Mississippi etc., Packet Co. v Edwards, 62 Miss. 534, this court announces that "the power to exclude should be cautiously exercised." A motion to exclude all the testimony ought not to be sustained if a demurrer to the evidence would not be, for the two, so far as sustaining them is concerned, are governed by the same principles of law, and the same rules govern as to the giving of a peremptory charge.

In the case of Mobile, etc., Railroad Co. v. McArthur, 43 Miss. 180, this court discusses fully the question as to when a demurrer to the evidence should be sustained. The court there says: "The party demurring is bound to admit as true not only all the facts found by the evidence introduced by the other party, but also all the facts which that evidence may fairly tend to prove." See, as approving this rule, Jordan v. Foxworth, 48 Miss. 608, and Western, etc., Co. v. Mayer, 64 Miss. 797.

In reference to a peremptory instruction, in Tribbette v Illinois, etc., Railroad Co., 71 Miss. 227, this court says: "The peremptory charge was not erroneous if there was no evidence to warrant a verdict for the plaintiff in any view of it which might be taken. . . . If there was no evidence reasonably tending to establish plaintiff's contention, the peremptory charge was correct . . . . If there was such evidence, then the charge was incorrect." And, in Holmes v. Simon, 71 Miss. 245, the court says: "It is only where a verdict could not be permitted to stand that a peremptory instruction can be given. . . . It will not do for the judge to take the case from the jury and decide it himself because he thinks it should be decided that way." See, also, Richardson v. Tolliver, 71 Miss. 966; Nesbitt v. Greenville, 69 Miss. 22; Cantrel v. Railway Co., 69 Miss. 438; Lowenstein v Powell, 68 Miss. 73.

An application of these authorities and the principle announced to the evidence in this cause, will demonstrate that the judgment should be reversed.

Williamson & Potter, for appellees.

The court below correctly excluded all of the plaintiff's evidence, because all of it which proved, or tended to prove, a sale of liquor by the principals in the bond to Mr. Guiney, except the testimony of the informer herself, clearly and unquestionably related to sales before June 5, 1894, the date of the execution of the bond. If Mrs. Guiney's testimony did not entitle the Case to be passed upon by the jury, there can be no question but that the judgment appealed from should be affirmed.

We proceed therefore to consider the testimony of this lady. There certainly can be no recovery in this case without proof of a sale to Mr. Guiney, after the execution of the bond, and it is a failure by the informer to give evidence of this indispensable fact to her case, which condemns it. The only part of her testimony on the subject of a sale is to this effect, and we put it as strong for her as the record will justify. Guiney left home one night drunk, the wife followed him, having a little boy to accompany her; when she came near the dramshop of Spengler & Muller, she saw her husband come out of the place; she then sent the boy into the shop to request Muller to come out. The boy went in, and Henry Muller, not the proprietor, but a clerk, returned with him. Upon his approach, Mrs. Guiney said to him: "You have sold whisky to Mr. Guiney, " to which the clerk replied "Yes, ma'am." This is the whole of it. Now, we contend that this was incompetent to prove a sale, and, further, if it be held admissible at all, it was insufficient in law upon which to predicate a verdict for the plaintiff. It was not a part of the res gestoe, for it was a narrative of a past event; it...