If the evidence adduced by the defendant below, to show that he refused to sell wines, &c., at other times than that when the state claimed to have proved that he sold them, was properly admitted, for the purpose of meeting said proof of the state, the evidence offered by the state, to rebut said evidence of the defendant, was clearly admissible. It tended to prove, that these refusals of the defendant were not real and in good faith, but a mere sham and pre-tence, and therefore to destroy the effect of the defendant’s evidence.
The record of the proceedings pending against the defendant, when he refused to sell liquors, as claimed by him, was properly admitted to show the existence of those proceedings ; and it was offered for no other purpose.
But the evidence thus adduced by the defendant was, as he now claims, irrelevant. It neither conduced to disprove the sale of liquors, as alleged in the complaint, and claimed to have been proved by the state, nor to discredit the testimony of the state to prove such sale. It was merely the general statement of the witness, that he boarded in the defendant’s house, when the sale was claimed to have been made; that he had called on the defendant for liquors, and been refused ; and that lie had never seen any sold by him. This, of itself, would prove nothing. If the defendant had claimed to prove, that the witness was present when the sale, claimed to have been proved by the state, took place, it would be otherwise. In that case, it would have been proper to show by him, that he did not observe it. Unless he was present, his not seeing such sale would not show that it did *257not take place, nor tend to prove that a witness, who stated, that he saw it, testified falsely; nor would a refusal, by the defendant, to sell to the witness, tend to show, that he did not sell to another person. But when such evidence had been received, at the instance of the defendant, and was before the court, it was a very singular claim on his part, that it should not be rebutted by the state. He ought to have waived or withdrawn his own irrelevant evidence, before he objected to such rebutting proof. It would be passing strange, if the defendant could claim the benefit of the evidence which he had adduced, and, at the same time, exclude the evidence on the other side, to refute it, on the ground that his own evidence was irrelevant. According to this claim, the state could not have even been allowed to impeach the credit of the defendant’s witness, either by general or other testimony; which is absurd.
But the defendant claims, that, however it might be with his own testimony, the evidence of the plaintiff was irrelevant; and that therefore, there was error in admitting it, for which the judgment below should be reversed. As the case stood, the evidence of the state was unnecessary, rather than irrelevant. But it is obvious, that its introduction could do no possible hurt to the defendant, since it could affect none of his testimony from which he was legally entitled to any benefit. If, therefore, there was any error here, it was merely abstract; and we are not aware of any principle which requires us, in such a case, to reverse a judgment. Alling v, Shelton, 16 Conn. R. 436.
We advise that the judgment below be affirmed.
In this opinion the other Judges concurred.Judgment affirmed.