People v. Fitzgerald — 27 N.Y. St. Rep. 595

Majority

p. 595

The People, Resp’ts, v. William Fitzgerald, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

Excise—Evidence.

On a trial for selling liquor on Sunday without a license, a witness for

p. 596

the people testified that he bought liquor at defendant’s on Sunday, and there were two persons there. On cross-examination, the witness was asked whom he saw there. This was excluded. Held, error.

Appeal from judgment of court of sessions of Dutchess county, • affirming conviction of defendant upon a charge of selling liquor without a license.

J. F. Ringwood, for app’lt; Martin Heermance, dist. atty., for resp’ts.

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 fifteen cents worth of whiskey 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 name 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.

Pratt, J., concurs.