Citation Numbers: 36 N.Y.S. 755, 11 N.Y. Crim. 163, 71 N.Y. St. Rep. 685, 98 N.Y. Sup. Ct. 344
Filed Date: 12/18/1895
Status: Precedential
Modified Date: 1/13/2023
By the judgment before the court, the defendant was convicted of a violation of that provision of the excise law which declares it to be a misdemeanor for “any person who, whether having a license or not, shall sell or offer or expose for sale, or give away any strong or spirituous liquors, wines, ale or beer: (1) On Sunday.” The evidence upon which conviction was based was furnished by a police officer, who testiAed that on June 30, 1895, he visited a liquor store, in which the defendant was at the time, with his sleeves rolled up, and an apron on. When the officer reached the premises, the door was closed and fastened, but he obtained entrance through a window, and found within three men besides the defendant; the latter being behind the front bar, back of which was the back bar, which contained glasses and labeled bottles, such as are usually found in such places. Upon the front bar there were two glasses. To the question, “What was in them?” he answered, “They were removed before I could get to the bar.” To the further question, “Something in them?” he replied, “Yes, sir; a small quantity of liquor.” It is evident from the testimony which preceded the last answer, as well as that which followed it, that this was a mere guess on the part of the officer. He saw nothing poured into the glasses; they were removed before he reached the bar; and he did not examine them afterwards for the purpose of ascertaining
The judgment of conviction should be reversed, and a new trial granted.