I think that upon the evidence there was a question of fact as to whether or not the Liquor Tax Law was violated. Two officers testified that they purchased beer on Sunday without asking for any food and that no food was furnished to them. The defendant testified that immediately after the waiter was arrested, in the presence of the officers, he said that he had complied with the law and had furnished sandwiches with the beer, and it does not appear that either of the officers denied that statement at the time. The alleged violation of law, the arrest and the declaration of the waiter appearing to have been contemporaneous, I think it may be said that this was part of the res gestee and thus competent evidence as characterizing what it was claimed was a violation of law. The officers were in such a position, having arrested a man for the commission of a misdemeanor in their presence, that they were called upon to make some justification for the arrest; and the fact that they then made no claim that the statement of the waiter was incorrect and did not justify the arrest upon the. ground that they had purchased intoxicating liquor when no meal was asked for or furnished, raised a question of fact for the jury as to the weight that should be given to their evidence. I think the absence of the waiter was accounted for and that this presented a question for the jury to determine whether they would believe the testimony of the officers in view of the fact that the waiter who was alleged to have served them claimed to have furnished them with food at the time, and no claim made on their behalf that his statement was not true. I think there should be a distinction between places of this character where food was supplied to the guests of the establishment, and a place- where the furnishing of the food is nothing but a subterfuge to evade a violation of the statute. Considering all the evidence I think there was a question for the jury in relation to the charge of selling to the *7police officers as well as the charge of selling to the agents of the State Department of Excise, and the jury having found a verdict for the defendant I do not think it should be disturbed.
Judgment and order reversed, new trial ordered, costs to appellant • to abide event.