State v. Spengler , 74 Miss. 129 ( 1896 )

Woods, J.,

delivered the opinion of the court on the merits.

Regard being paid to the evidence of the plaintiff alone, and giving it, taken all together, such weight as it was fairly entitled to, did it make out, or tend to make out, the case of the plaintiff ? And could and should a court permit a verdict for plaintiff on that evidence to stand? We are clearly of opinion that both of these questions must be answered affirmatively, and so answering, we must declare the action of the court in excluding all the evidence of the plaintiff to be erroneous.

The evidence of Hugh Guiney himself — evidently a not willing witness for plaintiff — on his examination in chief, was sufficient to establish the sale of the liquor, as complained of by plaintiff (and this is the only fact over which any serious controversy appears in the transcript), and whether his evidence in chief, or that brought out on cross-examination, was true, should have been submitted to the jury. But there was other evidence supporting the plaintiff’s contention on this point.. The evidence of the witnesses, Black, McGowan, Hanna, and Cox, leaves no reasonable doubt in the candid mind that Mr. Guiney was a frequenter and patron of the saloon of Spengler & Muller. When to this is added the somber light of the harrowing evidence of the unhappy wife, the conviction that the husband did buy liquor as charged in the complaint, is much strengthened. That the husband came from the saloon of defendants in a state of intoxication, and with a bottle of whisky obtained at that saloon the very night before the despairing wife followed him up town, and saw him come out of this saloon, .and was told by young Muller that he had just sold him liquor, is wholly undisputed. These facts, with the perfectly legitimate conclusions to be drawn from them, would, in our opinion, uphold a verdict for plaintiff. It must be remembered that the case was not required to be made out beyond reasonable doubt, but only with reasonable certainty.

For the present, we do not pass upon the competency of young Muller’s statement made to Mrs. Guiney. The learned court below did not exclude this statement, on defendant’s motion, because of its incompetency, and we are not called upon to decide what was not ruled upon below. The court below excluded all the plaintiff’s evidence because of its insufficiency, and this we hold was error.

Reversed and remanded.