dissenting:
At the November term, 1878, of the circuit court of Iroquois county, defendant was indicted for unlawfully selling intoxicating liquors in a less quantity than one gallon, not having a legal license to keep a “dram-shop.” On the trial before a jury defendant was found guilty on ten counts contained in the indictment. The sentence of the court was, he should pay a fine of $50 on each count on which he was found guilty, and in addition to the fine imposed the court sentenced him to a term of imprisonment in the county jail of twenty-five days on each count on which he was convicted. That judgment was affirmed by the Appellate Court for the Second District, and defendant brings the case to this court on error.
One ground relied on for a reversal of the judgment is, 'that the verdict is not supported by the evidence. • On this point counsel for the People insist the finding of the facts hy the circuit and Appellate courts is conclusive on this cpurt, and as the statute declares no assignment of error shall be allowed which shall call in question the determination of the inferior or Appellate Court upon controverted questions of fact in any case, excepting those enumerated in section 88 of the Practice act, this court is forbidden to pass upon the error assigned that challenges the correctness of the finding of the facts by the Appellate Court. Conceding, as may be done, that under the Practice act the Supreme Court may still review the evidence to ascertain whether the accused is guilty or not, in cases of misdemeanor that may come to this court from any of the Appellate Courts, as was done before the amendment of section 88 by the act of 1879,1 think the judgment may and ought to be affirmed, on the testimony of the witness Eyan alone, if all other testimony introduced by the prosecution should be disregarded. It may be his testimony was somewhat contradictory, but his credibility was a question for the jury trying the case.
Giving credit to the testimony of Eyan, as was the province of the jury to do, the sales of whisky and beer testified to by him would fully sustain the conviction on ten counts. The witness distinctly testified as to the sales of beer, but it is objected it was not proved what kind of beer it was,— whether it was malt beer or some fermented liquors called beer, the sale of which is not prohibited by law. If the beer the sales of which were proved, was malt beer, its sale is prohibited by statute, and would justify the conviction. No doubt the jury understood the witness when he stated he had bought leer of defendant, to use the word in the sense it is most commonly used, to mean a malt liquor, the sale of which is forbidden by law. It seems to me the jury might very properly understand the witness when he used the word leer to mean the malt liquor so generally used as a beverage. Defendant knew what kind of beer he had sold, and had he understood the witness to mean any kind of beer made by fermentation the sale of which is not unlawful, it seems certain defendant would have had him explain his meaning. It may, therefore, be reasonably concluded that both the jury and defendant understood the witness, in speaking of beer, to mean a malt liquor.
Ho error is perceived in the action of the court in the rejection of evidence offered by defendant. The witness produced was permitted to state he had heard there had been a difficulty between the witness Eyan and defendant, but when asked from whom he heard it, the court sustained an objection to the question. In that there was clearly no error. It was a matter of no consequence from whom he heard of the difficulty. The fact there had been a difficulty between them was all that was important, and that the witness was permitted to and did state. Counsel for defendant then said to the court: “We propose to show that in the spring of 1877 Fisher and Eyan had a difficulty, and then to go further and show that he was not in Fisher’s place of business after that.” Objection was made to the giving of the testimony proposed to be given, which was sustained, but the court immediately thereafter stated what defendant might prove, as follows: “I do not hold that you can not show the date or time that Fisher had a difficulty with the witness Eyan, and that the witness Eyan was not in Fisher’s place of business after that. I only hold that what you state is no reason why this witness should be allowed to state who he heard tell that the witness Eyan and Fisher had a difficulty, and you may show that after that time he was not in Fisher’s place of business.” Even if it be conceded it was improper to sustain the objection to the testimony proposed to be given, the court immediately, instantly thereafter, corrected its mistake, and stated clearly and distinctly that defendant might give the very testimony proposed to be given, and yet defendant did not avail of the permission given by the court to introduce the testimony which he claimed to he able to do. Certainly it is not error if the court inadvertently rejected proper evidence if the court instantly corrects its mistake, and grants permission to introduce the testimony proposed to be given. It would seem to be sufficient if the court at any time during the progress of the trial corrected its error, but when it is done instantly, as was done in this case, before any other proceedings were had, I do not understand how it is possible to hold the defendant was prejudiced in the slightest possible degree by the decision of the court.
Nor was there any error in the action of the court in overruling the motion for a new trial on the ground of newly discovered evidence. It is stated in the affidavit on which the motion is based, that defendant had a conversation with the witness Eyan, in which the witness stated to defendant he was mistaken in regard to the time when he testified he bought intoxicating liquors of defendant, and that he did not obtain any after a settlement between witness and defendant, early in the spring of 1877. Some excuse—but not a very satisfactory one—is given for not obtaining the affidavit of Eyan to the truth of the statement contained in the affidavit on which the motion is based, but defendant himself does not even state that what he expects the witness Eyan would swear to on another trial would he the truth, and the court very properly disregarded his affidavit in toto.
I am of opinion the judgment should be affirmed.
Mr. Justice Sheldon concurs in the dissenting opinion.