Archer v. State

Miller, J., delivered the opinion of the Court. The appellant was indicted for selling on the 10th of May, 1875, one-half pint of whiskey to Samuel M. White-ford, with a view to profit, in the prosecution of a regular trade and business, without having obtained a license so to do. At the trial four exceptions were taken to the rulings of the Court, upon the admission of testimony. Before noticing these rulings in detail, it is proper to observe that it appears from the testimony in the case that the traverser, who had no license to sell spirituous liquors in less quantities than a pint, kept cigarettes for sale and invited the purchasers of them to drink whiskey with him.

There can be no question, that if the price asked for the cigarettes was intended to cover the price of the whiskey, which was afterwards nominally given to the purchasers, the transaction was a sale of the whiskey, as well as of the cigarettes. Such an attempt to evade the law is a very shallow one, and testimony tending to show that this was the real character of the transaction was admissible to establish the offence for which the traverser was indicted. We shall now consider the several exceptions in their order. First Exception. — On the part of the State the witness Whiteford testified, that he went to the traverser’s place of business on the 10th of May, 1875, and paid him forty cents and got four cigarettes.

He was then asked what these cigarettes were worth to which he replied he did not Icnoiu. The State then asked him what was his opinion or judgment as to the value of them, and to the asking of this question the traverser objected. We see no error in the ruling allowing it to be put. It was important to the issue and admissible to show the actual value of these articles as compared with what he paid for them, and as he was evidently a reluctant witness it was proper after his previous answer, to press him with the question as to what was his judgment of their value.

If was not heces ³⁷ sary to inquire first whether he was an expert as to the value of such an article. 'Second Exception. — The witness then stated that these cigarettes were a parcel of tobacco wrapped in paper, and might be worth a quarter to a half cent each, but he was not a judge of tobacco. The State then put to him the question, whether there was anything in the previous acts or declarations of the traverser, which induced him to believe, that if he called for cigarettes or paid him at the rate of ten cents a piece for them, that he would get in return anything besides the cigarettes for the same money, and if so to state what had occurred to induce him so to think. The traverser objected to the asking of this question. We think the Court was right in allowing it to be put.

An affirmative answer accompanied with a statement of such previous acts and declarations of the accused, would clearly have been admissible and competent evidence. But if we are wrong in this, it appears by the subsequent.exception the witness answered the question in the negative, and hence no harm was done to the traverser by the ruling excepted to. Third Exception. — The witness having answered the previous question in the negative, was then (as he should have been at first) required to state all that occurred when he went to this place on the day in question, and he replied, that he and four others went there, that he called for four cigarettes aiyl paid forty cents for them; we were afterwards invited into another room and took a drink and came out; there was a shelf or counter to the left of the door ; we walked in and took whiskey; 'there were glasses and a bottle there; saw but one either time; was some talk in there; went in first time with Barton, last time with Johns; cigarettes were handed round ; got one and took a drink. In reply to questions by the traverser’s counsel on cross-examination, he said, he never bought whiskey from the traverser, and never had any contract, ³⁸ understanding, or agreement with him, under or by which he was to give him whiskey if he bought cigarettes or anything else.

Upon re-examination the State asked him whether from anything which had already occurred between him and the traverser or in the presence of the latter, he expected, when he went back with his four friends as previously stated, to get whiskey for the money he paid, and if so, how, and why he expected it. To the askin’g of this question the traverser objected. In view of what the witness had stated on his cross-examination, we are of opinion there was no error in allowing this question to be asked him. His reply to it contained in the next exception explains his testimony ,on cross-examination, and must have tended strongly to convince the jury, that the transaction in question, was in fact, a sale of the whiskey, and so intended to be by the traverser.

He said in reply to this question that the action of others at the