State Ex Rel. Thorndike v. Collins

There was evidence tending to show that the premises described in the petition, on March 2, 1894, were used by the defendant Collins for the illegal sale of liquor, with the permission and by the sufferance of the defendant McShane. This was sufficient to sustain the denial of the motions for a nonsuit and for direction of a verdict for the defendants. The evidence was properly submitted to the jury.

The evidence of witnesses who testified that they were on the premises on March 2, 1894, and saw bottles, glasses, a bar, a bartender, men drinking at the bar, and barrels which Collins told them contained liquor, was competent and material upon the question of the use of the premises which was submitted to the jury. The evidence of the witness who testified that he was on the premises two months before March 2, 1894, and "saw two men behind the bar selling out the rum pretty fast," and that as to the use of the premises for the sale of liquor prior to March 2, 1894, and as remote as April 20, 1893, was also competent on the question of use. While it was not directly shown that the sales prior to March 2, 1894, were made by Collins, or under his direction, or with the knowledge of either Collins or McShane, there was evidence that Collins had long used a part of the building for a saloon, over which McShane had lived for several years, and that the latter occupied a place of business near the saloon and in plain view of its rear entrance. Upon all this evidence, it was for the jury to determine by whom the sales between the dates mentioned were made, and whether the premises were used for the illegal sale of liquor during that time, with the knowledge of McShane. The question whether evidence of sales prior to March 2, 1894, should have been excluded on the ground of remoteness was one of fact to be determined by the presiding justice.

Thorndike testified that he examined the records of the internal revenue collector at Portsmouth, and made a copy thereof, which he produced and read to the jury. The copy showed that Collins had paid the special revenue tax as a wholesale malt liquor dealer and as a retail liquor dealer, at 13 Warren street, Concord, from July, 1893, to July, 1894. In State v. Loughlin, 66 N.H. 266, evidence of the same character regarding the same public record was offered, and it was held that a public record may be proved by an examined copy sworn to by an unofficial witness. In State v. Loughlin, it appears that the records of the internal revenue collector are required by law to be kept open to public inspection, and that the collector cannot remove them or furnish copies. The evidence of Thorndike as to his examination of the record and the copy made by him, were competent to show that Collins had paid the special tax. State v. Loughlin, supra; Whitehouse v. Bickford, 29 N.H. 471. If it were necessary to show the impossibility of producing the original record in order to render the copy admissible, that could be done now. So, also, the testimony of Wheeler was properly admitted. The blank application for a United States license procured from the internal revenue bureau, showing the rules for filling out the same and the definition of the abbreviations used, came from the proper source, and was competent to explain the corresponding abbreviations which appeared in the copy of the record testified to by Thorndike.

The record of the police court was competent to show illegal sales of liquor by Collins in Concord. There was evidence that Collins had no place of business in Concord other than that on the premises described in the petition; and whether the sales on May 20 and August 26, 1893, were made on those premises, was for the jury to determine. The judgment was the material fact shown by the record. It is immaterial whether the plea was guilty, not guilty, or nolo contendere. State v. Fagan, 64 N.H. 431.

It having been shown that the liquors seized on March 2, 1894, were subsequently returned to Collins as claimant by order court, the evidence of what he did in the action State v. Spirituous Liquors, ante, p. 47, was admissible as an admission and claim on his part.

A petition for an injunction under the nuisance act, so called, is a civil proceeding. State v. Saunders, 66 N.H. 39; Rancour's Petition,66 N.H. 172. This fact is an answer to the defendants' exception to the argument of counsel and charge of the court. Being a civil proceeding, the questions at issue were to be determined upon the balance of probabilities, and the jury were at liberty to draw such inferences as they reasonably might from the fact that the defendants did not testify. Carter v. Beals,44 N.H. 408, 413.

Exceptions overruled.

BLODGETT, J., did not sit: the others concurred.