Fisher v. People ( 1882 )

Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an indictment, in the circuit court of Iroquois county, against John Fisher, for selling liquor without a license. The indictment contained nineteen counts, and was returned into court by the grand jury November 9, 1878. At the November term, 1880, a trial was- had before a jury, which resulted in a verdict of guilty on ten counts of the indictment. The court. entered a fine of $500 against the defendant, and sentenced him to two hundred and fifty days’ imprisonment in the county jail.

On the trial of the cause four witnesses were called by the People. First, Daniel Gress. He states that the defendant, in the summer and fall of 1878, kept a billiard hall in Loda, and sold cider, pop and cigars, but he don’t know whether the defendant sold liquor or not. Fritz Eeineke was the next witness, and he has no knowledge of any sale of liquor by the defendant. The next witness was Theo. J. Foster. He testified that in 1877 or 1878 he had liquor at the defendant’s place from one Stewart, while the defendant was absent in Pennsylvania. As to the first two witnesses, it can not be seriously claimed that any violation of law was proved by their evidence. As to Foster’s evidence, he' says he purchased liquor of Stewart, but whether it was more or less than eighteen months before the finding of the indictment is uncertain, hence can not be relied upon to sustain a conviction. Besides; it was not shown that the defendant was the proprietor of the establishment at the time. If he was not, of course he could not be held liable for a sale made by Stewart. There was, therefore, no evidence before the jury upon which a conviction could be claimed, except that of Martin Byan, who was the-fourth witness for the People. He testified that he purchased liquor of defendant in the fall and summer of 1878, as many as six times,—that he purchased beer as many as six times. On cross-examination this witness admitted that he and the defendant had a difficulty at defendant’s place of business, and that Fisher ordered him out of his house, but he says, “don’t exactly remember what year it was. ” Later in his evidence he thinks it was in 1876.

After the People had closed their evidence the defendant called a witness, who testified that he knew Byan; heard something about he and Fisher having a difficulty. This evidence being objected to, the defendant then offered to prove the following: “We propose to show that in the spring of 1877 Fisher and Byan had a difficulty, and then go further and show that he was not in Fisher’s place of business after that. ” This testimony was tibjected to by the attorney for the People, and the objection sustained by the court. When Byan was on the stand he admitted that he had at one time a difficulty with Fisher, and that he had been ordered out of his place of business, but he did not remember when it occurred. Now, if this difficulty took place in the spring of 1877, and the witness was not in the defendant’s place after that, he was doubtless mistaken when he testified • that he purchased liquor in defendant’s place in 1878, and this was an important fact for the defendant to establish, and we perceive no objection whatever to the offered evidence. Indeed, it was error to reject the offered evidence. If the defendant had been able to prove that the difficulty took place in 1877, and that Ryan was not in his house after that time, as he offered to do, the jury could not, under the evidence, without disregarding its legitimate bearing, return a verdict of guilty. If this offered evidence was true, then no sale occurred within eighteen months prior to the finding of the indictment. We think it is plain that the rejection of this offered evidence prevented defendant from having a fair trial.

It may, however, he said that the remarks of the court, after the rejection of the offered evidence, may be regarded as a retraction of the ruling first made; but the ruling to which the court allowed an exception is entirely inconsistent with the remarks afterwards made by the judge. Even if the remarks be regarded as a retraction of the former ruling, still the defendant was denied a means of making out his defence. The fact that the witness and defendant had a difficulty, would be of no significance in such connection unless the date of the difficulty could be established. It is a well known rule of evidence that as a means of fixing the date of any given transaction, you may prove by a witness that at a given time he heard of the occurrence. The question asked was, an appropriate mode of approaching that subject, and should have been permitted.

On the motion for a new trial the defendant re,ad his own affidavit, in which he, in substance, stated that since the trial he had a conversation with the witness Martin Ryan, who told affiant that he was mistaken in regard to the time he testified that he bought liquor of affiant; that Ryan informed affiant that he did not obtain liquor of him at his place after the early part of the spring of 1877; that if a new trial is granted Ryan will appear and testify to such fact. The affidavit of the witness was not produced, but the defendant accounts for its non-production in a satisfactory manner, and offered to produce it within a reasonable time, if the court would withhold its decision on the motion to a later day of the term. The court, however, refused to grant the request, and overruled the motion for a new trial. We are of opinion that it was the duty of the court either to have allowed the motion for a new trial, or postponed the hearing of- the motion until the defendant had a reasonable time to produce Eyan’s affidavit. The defendant could not, under the indictment, be convicted of any sale of liquor made prior to May 9, 1877, and if it be true, as the defendant showed in his affidavit, that Eyan had become satisfied that he had made a mistake, and had not purchased liquor of defendant in 1878, then the conviction, which was based solely on the evidence of Eyan, ought not to stand. It is no doubt the general rule, and a good one, that before a new trial should be granted upon newly discovered evidence, the affidavit of the witness who will testify must be produced, that the court may know that such witness will, upon another trial, testify as the party represents. But under the circumstances of this case it is plain that the defendant ought to have had an opportunity to produce the affidavit of Eyan.

After a careful examination of the whole record, we do not think the defendant has had such a trial as the law contemplates he should have, and for the error indicated the judgment will be reversed and the cause remanded.

Judgment reversed.