To convict one of being a common seller of strong or intoxicating liquors, under sections 26 and 27 of chap. 78 of the Rev. Stats., it is not necessary that he should have been twice convicted of selling in violation of section 16 of the same chapter, and a third sale by him be proved within six months of his last conviction; but proof of any three distinct sales, either to the same person, or to different persons, is sufficient to maintain the indictment; the last clause of the 27th section not being designed to limit the effect of the first clause of the section, but to ease a doubt which had arisen about a double conviction founded in part upon the same proof. Where a witness has sworn in his direct examination that the criminal acts were done within the times laid in the indictment, and, upon cross-examination, it appears that he cannot fix the precise date of any one of them, it is permissible in reply, to reexamine the witness as to the means by which he is enabled to ascertain that the criminal acts were done within the period covered by the indictment. Unless it appears that a party excepting to the suggestive or leading character of questions put by his opponent to his witnesses has suffered injury therefrom, a court of error, upon a bill of exceptions which does not disclose the circumstances, will hardly interfere with a matter so amenable to circumstances, and so much within the discretion of the judge trying the cause.
AMES, C.J.
The first clause of the 27th section of chap. 78, of the Revised Statutes expressly provides, that three several sales of strong or intoxicating liquors, either to the same person or to different persons, shall be sufficient to constitute the person selling, a common seller, within the meaning of the 26th section of the same statute. Under this clause of the 27th section the defendant was properly convicted; the office of the last clause of the section being, not to limit the first, but to provide further, that although the defendant had been convicted and punished under the 16th section of the same chapter for two of the sales, he might, nevertheless, upon proof of a third sale within six months of the last conviction, be convicted thereby as a common seller. This clause was evidently added to meet the objection of a double conviction founded in part upon the same proof, which was started and discussed in State v. Johnson, 3 R.I. Rep. 94, and to recognize the distinction there laid down by the court, between the offence of a single sale in violation of law, and the offence of carrying on an illegal traffic in liquors, proved, under the statute, by three distinct sales in violation of it.
The other exceptions are equally untenable. The witness for the state, Place, had sworn, in his direct examination, that the defendant had frequently sold to him within the times laid in the indictment. It appearing from his cross-examination that he could not specify the precise date of any one of these numerous sales, it was quite proper that the government should be permitted in reply, to reexamine him as to the means by which he was able to ascertain that the sales were made to him by the defendant within the period covered by the indictment. We see no reason to suppose that the defendant suffered any injury from the suggestive or leading character of the last and only objectionable question in point of form, put by the attorney-general upon his reexamination of the witness, Place; and without this, should hardly attempt to interfere with a matter so amenable to circumstances, and so much within the discretion of the judge trying the cause. Both exceptions must therefore be overruled, and sentence be passed upon the verdict.