Spirituous liquors — Sale — Agency — Evidence.
[fn*]FOSTER, C. J., C. C. [fn*] CUSHING, C. J., having presided at the trial of the indictment, did not sit.
The respondent was charged with having sold liquor on a specified day to George E. Getchell.
In his behalf, his daughter testified that she did not know that her father sold any liquor on that day to Getchell, and that she did not sell him any.
On cross-examination, it was clearly competent to inquire, as preliminary to an effort to contradict her, whether she did not tell Getchell's wife that her husband treated once on that day; and no objection was made to this inquiry. Whether he treated or not was a material fact, tending to show a purchase of liquor from the respondent, or his wife or daughter as his agent.
It was therefore clearly competent to show that the daughter, who had testified that she did not know that her father sold liquor to Getchell on that day, and that she did not sell any to him, told Mrs. Getchell that her husband treated. If she did tell Mrs. Getchell so, it was evidence of her knowledge of an unlawful sale by the respondent or by his authority.
It was also competent for the prosecution to show that Clara E. Getchell bought liquor of the respondent on the same day, notwithstanding another indictment was pending against him for selling the liquor to her.
The prosecution introduced evidence tending to show a sale by the wife of the respondent to Getchell. Such proof would sustain the indictment; but in order that the respondent should be held liable for a sale made by the hand of his wife, the state would be compelled to show, further, that the wife was acting as his servant or agent in the transaction. Without such evidence the proof of a sale by his wife would go for nothing. It was therefore competent to show sales made by the respondent himself, at the same place, other than the sale charged in the indictment, because such sales by him tended to show that the traffic in liquors there was his business, and therefore that the act of his wife was his act. State v. Bonney, 39 N.H. 208; State v. Colby, 55 N.H. 72.
Whether it was competent for the state to show that one of the selectmen never joined in any appointment of the respondent as an agent for the sale of liquor, we need not consider. The respondent having himself testified (without his own objection or exception) that he never received any appointment as agent, the previous testimony of the selectman was rendered wholly immaterial, and the respondent, in these circumstances, could not have been prejudiced either by its reception, or by its subsequent withdrawal from the consideration of the jury.
The instruction of the court to the jury, that the respondent's own testimony on this point was evidence that he was not an agent, would clearly have been unexceptionable, even if the whole question were not entirely immaterial, as it certainly was in the present state of the law, as held in this state, that the burden of proof of agency rests on the respondent. State v. Foster, 23 N.H. 348; State v. McGlynn, 34 N.H. 423; State v. Shaw, 35 N.H. 217; State v. Keggon, 55 N.H. 19.
My opinion is that the exceptions should be overruled, and judgment ordered upon the verdict.
LADD and SMITH, JJ., concurred.
Judgment on the verdict.