State v. Foley , 45 N.H. 466 ( 1864 )

Bartlett, J.

Under this indictment, the nuisance "must be shown as an existing fact, and not by evidence of reputation.” 3 Greenl. Ev. sec. 186. We have not inquired whether the evidence, that the visits of the city marshal to the defendant’s house were "by request”, might not be competent for some purposes, because it was not admissible here for the State, in order to show that complaints had been made to the city marshal; for this latter fact was incompetent to show the offence charged, and the case shows no other purpose for which it could properly have been received. Wharton Cr. L. 803. So that,whether the evidence objected to by the defendant was properly admitted or not, the court erred in permitting the counsel for the State to argue from it to the jury, that such complaints had been made, Tucker v. Henniker, 41 N. H. 323, Logan v. Monroe, 7 Shepl. 257; and although sometimes a fact, which could not in the outset have been shown by a party upon the issue on trial, may afterwards become admissible for him by way of rebuttal, Wiggin v. Plumer, 31 N. H. 269, yet the case shows no such state of facts. And it seems to us that the course of argument, which the State’s counsel were permitted to take, was calculated to prejudice the defendant’s case with the jury.

The mere fact, that, under the internal revenue act of the United States, a retailer’s tax had been paid and a retailer’s license obtained for the defendant’s wife, had no legitimate tendency to prove that the defendant did not keep a disorderly house or to justify him in keeping it. State v. Bailey, 21 N. H. 345; 3 Greenl. Ev. sec. 187; 1 Russ. Crimes, 326; Wharton C. L. 802; Laws 1855, ch. 1658; see State v. McGregor, 41 N. H. 414. The court properly refused to give the instruction asked for by the defendant. The verdict must be set aside and a new trial granted.