People v. Marx — 128 A.D. 828

Majority

p. 828

The People of the State of New York, Respondent, v. Anthony Marx, Appellant.

Second Department,

November 20, 1908.

Headnote

Intoxicating liquors — sale on Sunday—evidence identifying liquors ■ sold—expert testimony. , .

One who has drunk whisky for thirty years is competent to say whether a liquid that he drank was whisky, although unable to tell the component parts Of Whisky or whether the liquid served was a distilled or rectified spirit, or whether there were not medicines which smelled like whisky.

The fact that the defendant, prosecuted for selling liquor on Sunday, produced ." a liquid to fill an order for whisky Is evidence that it was whisky.

p. 829

Appeal by the defendant, Anthony Marx, from a judgment of the Court of Special Sessions of the second division, of the city of New York, rendered on the 24th day of April, 1908, convicting the defendant of violating the- Liquor Tax Law by selling liquor on Sunday, and also from an order denying the defendant’s motion to dismiss the information herein.

James E. Finegan, for the appellant.

Peter P. Smith [John F. Clarke with him on the brief], for the respondent.

The testimony against the defendant is that of two police officers who visited his liquor saloon in citizens’ clothes of a Sunday. One of them testified that he ordered a drink of whiskey of the defendant, that the defendant served the same to him from his bar, that he drank it, and that it was whiskey. He was cross-examined as an expert, and because he could not tell the “ component parts ” of whiskey, or whether the liquor served to him was “ a distilled or rectified spirit ”, or whether there are “ many medicines ” that smell like whiskey, we are asked to hold that he was not competent to know whiskey when he drank it — and this although he said he had been . drinking whiskey for thirty years. This is an old story, and it were well if the courts heard it for the last timé. Counsel for the defendant fails even to perceive that the fact that in answer to an order for whiskey the defendant produced a liquid to fill the order, was evidence that it was whiskey. The other policeman testified to the giving, and filling of the order, but did not taste or smell the drink.

. The judgment should be affirmed.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment of the Court of Special Sessions affirmed.