People v. Fitzgerald — 8 N.Y.S. 81

Majority

p. 81

People v. Fitzgerald.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

Intoxicating Liquors—Illegal Sales—Evidence.

Where, in an action for selling liquor without a license, defendant denies all knowledge of the alleged offense, and a witness testifies that he saw two persons-in defendant’s saloon when he bought the liquor, it is competent to ask him, on cross-examination, who they were, so as to enable defendant to produce them in his-own behalf, to impeach the credibility of the witness.

Appeal from court of sessions, Dutchess county.

Complaint by John Byrnes, chief of police of Poughkeepsie, against William Fitzgerald, for selling liquor without a license. Verdict of guilty, and from the judgment of the court of sessions, affirming the judgment of the recorder’s court of Poughkeepsie on the verdict, defendant appeals.

Argued before BARNARD, P. J., and Pratt, J.

J. F. Ringwood, for appellant. Martin Heermance, Dist. Atty., for the People.

The defendant was accused of the crime of selling liquor on Sunday without license to sell the same. One Puttenburgh testified that he went to defendant’s saloon on Sunday night; that he bought 15 cents’ worth of whisky there; that he went in alone, and found two other gentlemen there. Upon cross-examination the witness was asked whom he saw after he got there, and this question was excluded, upon the objection of the people. This was an erroneous ruling. The credibility of the witness was for the jury, and the circumstances surrounding the commission of the offense, with the names of those present, were material. The defendant was sworn, and denied the facts, and all knowledge of the offense. It was impossible for the accused to produce in his behalf the persons alleged to be present, unless the question put was allowed and answered. Conviction reversed.