United States v. Angell

• Decision Date: 01 March 1881
• Citation: 11 F. 34
• Parties: UNITED STATES v. ANGELL.
• Court: U.S. District Court — District of New Hampshire

11 F. 34

UNITED STATES v. ANGELL.

United States Circuit Court, D. New Hampshire.

March, 1881

This was an indictment found by the grand jury of this district at the term of this court held at Exeter, October 8, 1868 charging the respondent with exercising and carrying on the trade and business of a retail dealer in liquors on the first day of May, 1867, and from that day to the first day of January, 1868, without paying the special tax in such cases by law required. To this indictment the respondent pleaded not guilty, and the government joined the issue.

(1) In order to sustain the indictment Amos D. Carnes was offered as a witness on the part of the government, who testified that some time in June, 1867, he was at the place of business of the respondent, in Sunapee, and while he was there Stephen H Heselton and Melvin S. George came there,-- the said Heselton bringing with him a scraper which he had borrowed of respondent, and for the use of which the respondent charged him 25 cents, which Heselton paid; that afterwards said Heselton called for something to drink; that the respondent went into a back room and drew some liquor which smelt like rum, and which Heselton and George drank; and that Heselton then pair respondent some money, but the witness could not tell what it was, except that it was scrip, and that respondent did not give back any change. To contradict the testimony of Carnes, the respondent offered said Heselton as a witness, to whom the counsel for the respondent put the following question: 'Did you drink any liquor at Mr. Angell's that day?' referring to the time Carnes testified he saw Heselton and George drink at the respondent's. To the question the counsel for the government objected, on the ground that the same was leading. The court sustained the objection; to which ruling the respondent excepted.

(2) In order to explain the fact that a barrel partially filled with Medford or new rum was found on the premises of the respondent on the twenty-third day of July, 1867, when a search was made of the premises of the respondent, and to show that said rum had been procured by the respondent as the agent of certain other persons who had clubbed together to purchase said rum for haying, and not to sell for himself the respondent offered Daniel S. Currier as a witness, and proposed to prove by him, among other facts, 'that said Currier applied to the respondent as his agent to procure some rum to do his haying with, and at that time the respondent told him that a club was being formed to send for a barrel of rum, and that he (the witness) might join them. ' To this testimony the counsel of the government objected, on the ground that it was incompetent because it was proposed to prove the declarations of the respondent at the time of the negotiation. The court sustained the objection and ruled out the testimony; to which ruling the respondent excepted.

(3) It was duly shown to the court that one Philip Belloir, an important witness for the respondent in this case, and who testified before the United States commissioner on the examination of the respondent for the offense charged in the indictment in this case, and was cross-examined by the counsel for the government, had, since the last term of the court, departed from and is still beyond the jurisdiction of the United States, and in parts unknown; for which reason, and because he was unable to procure the personal attendance and testimony of said Belloir on the trial, the respondent offered to read the notes of the testimony of said Belloir, taken by said commissioner on said examination; the counsel for the government admitting that said commissioner would, if he were present, testify that he intended to take, and believed he had taken, the whole and substance of the testimony of said Belloir given on said examination, and agreeing that said notes of said testimony might be read to the jury if the said testimony was competent on this trial, if proved in any legal manner. But he objected to the reading of said notes on the ground that, notwithstanding the said Belloir had departed from and was still beyond the jurisdiction of the United States, and in part unknown, and his testimony had been given on the examination of the respondent before the United States commissioner on the same charge set forth in said indictment, and the counsel for the government had then and there cross-examined said witness, and the whole substance of said testimony could be proved, yet said testimony, however proved, was incompetent and inadmissible on this trial. The court sustained the objection, and said testimony was ruled out; to which ruling the respondent excepted.

(4) Franklin P. Morgan, a witness called by the government, among other things, testified that the respondent said to one Benjamin Muzzy, a witness called by the respondent, 'that he (the respondent) had to look out for Newport folks. ' In order to contradict said Morgan the respondent recalled said Muzzy, and put to him the following question: 'Did Mr. Angell at that time (referring to the time testified to by said Morgan) say to you that he had to look out for Newport folks?' incorporating into the inquiry the language used by said Morgan. To this question the counsel for the government objected, on the ground that it was leading in its form. The court sustained the objection and overruled the question; to which ruling the respondent excepted.

(5) In order to prove his side of the issue, and as a full answer to the charge set forth in the indictment, the respondent offered in evidence a receipt signed by Chester Pike, collector of the third district of the state of New Hampshire, in which the respondent then resided, which receipt was given on or about the day on which it purported to be dated, viz., September 1, 1867, for a special tax assessed by the United States assessor for said district in the latter part of the month of August, 1867, of which receipt the following is a copy:

UNITED STATES INTERNAL REVENUE.

$37.50. No. 2,775.

Receipt for Special Tax.

Received of Welcome A. Angell thirty-seven and 50-100 dollars, for the special tax upon the business or corporation of a retail dealer in liquor, (retail dealer in liquor, $25; penalty, $12.50,) to be carried on at his store, . . . street, in the town of Sunapee, county of Sullivan, and state of New Hampshire, for the year ending May 1, 1868.

Dated at Cornish, N.H., September 1, 1867.

(Signed) CHESTER PIKE,

(L.S.)

Collector of the Third District, State of New Hampshire.

To the admission of this receipt the counsel for the government objected, on the ground that the same was incompetent, and was no answer to the charge set forth in the indictment. The court sustained the objection, and ruled that said receipt was not competent for the purpose offered; to which ruling the respondent excepted.

(6) The respondent offered evidence tending to show that certain persons employed the respondent as their agent to purchase a quantity of new or Medford rum in Boston, the said persons paying to the respondent for the cost of said rum in advance, and the respondent receiving no profit for the transaction; and that, in accordance with that arrangement, the respondent procured a quantity of rum for said persons, and delivered the same to them from time to time in the proportions in which they were to have the barrel, according to the proportions of the purchase money paid by each of them. In view of this evidence the respondent requested the court to instruct the jury that if they believed that the respondent was employed by said persons to purchase said rum for them, the said persons advancing the cost of the same to the respondent, and the respondent purchasing the same with the money so advanced, as their agent, and without profit to himself, the transaction did not constitute him a retail dealer in liquor in contemplation of law, although he purchased the same in his own name, and received the bill of the same in his own name. The court declined to give said instruction, but did instruct the jury that if the respondent purchased the rum in his own name and had the same billed to him in his own name, and dealt it out from time to time as called for, he was a retail dealer in liquor, notwithstanding the money for the purchase of said rum was advanced to him by said persons, and he procured and dealt out the same without profit to himself. For this refusal of the court to give the instruction moved, the respondent excepted.

(7) The respondent also requested the court to instruct the jury that if the respondent had spirituous liquors on hand of his own at the time his agency to sell liquors for the town of Sunapee ceased, and his license from the United States as a retail dealer in liquor had expired, namely, on the first day of May, 1867, and sold only those liquors, the fact did not constitute him a retail dealer in liquor in contemplation of law. The court declined to give said instruction, but did instruct the jury that if the respondent, after his said license expired, sold or offered for sale said liquor, he was a retail dealer in liquor in contemplation of law; to which refusal and instruction the respondent excepted.

(8) The respondent also requested the court to instruct the jury that, in order to constitute the respondent a retail dealer in liquors, they must find that he was engaged in the sale of liquors as a trade or business. The court declined so to instruct the jury, but did instruct them that, if the respondent sold or offered for sale foreign or domestic spirits, wines, ale, beer, or malt liquor, and his annual sales, including all sales of other merchandise, did not exceed the sum of $25,000, he was a retail dealer in...