Clement v. Stratton

Smith, P. J.:

This action is brought to recover $500 upon, a liquor tax bond. The defendant the American Fidelity Company gave its bond which was conditioned that if the defendant Stratton should violate ■ the provisions of the Liquor Tax Law at any time during his holding of the liquor tax certificate issued to him, the said defendant would pay to the State the-sum of $500. The plaintiff sought in the action to prove by four special agents of the department that the Liquor Tax Law had been violated upon two occasions, one upon the 27th day of October, 1907, and the other on the 10tli day of November, 1907. The. sole question litigated was the .question of fact as to whether the plaintiff had established his cause of action for a violation of the law upon those dates. Two of the special agents swore to the violation upon one date, and the remaining two to the violation of the law .upon the other date. Upon their crossr examination they were asked whether they did not know that they were violating the law when they purchased the liquor, and two of the witnesses answered yes. The case was submitted to the jury by the trial judge in an explicit and fair charge. At the close of the main charge he was asked by the plaintiff’s comisel to charge “ That it is not unlawful for special agents of the Commissioner of Excise to, purchase or offer t.o purchase liquors during hours when it is unlawful to sell such liquors. The Court: I decline that except' as covered by .the charge already made. I charge that it is unlawful for a man to sell during those hours. Mr. Fish: I except.”

In the main charge the subject of the request was not mentioned. The plaintiff contends that in view' of the cross-examination of the plaintiff’s witnesses, he was entitled to the explicit instruction by the court that these special agents were not engaged in an unlawful transaction at the time that they offered to purchase the liquors for the sale of which this defendant is claimed to be made liable upon its bond. On the other hand it is claimed that this was.not one of the issues in the case, and that at the most it was in the discretion of the court to make the charge requested, and that no error can be predicated upon its refusal so to do.

Courts are created for the enforcement of the law. It is impossible to obtain witnesses for the violation of the Liquor Tax Law from that class who are beneficiaries of that violation. Unless the evidence can be obtained through special agents paid a regular salary and representing the department, the enforcement of law becomes impossible. It may • be that some special agents are unworthy of credit. The fact that they are purchasing liquor for the purpose-of becoming witnesses of its violation, or that' they are. in a sense detectives for the Excise Department, creates an unwarranted prejudice in the minds of many jurors as against all of such witnesses. Defendant’s counsel, by the questions asked of the plaintiff’s witnesses, had represented to the jury that they were violating the law at the time that they were procuring the evidence which it was their duty under the law to procure. Their evidence was then submitted to the jury under the false stigma of having been unlawfully procured. The issue of fact was one closely contested, and it was the duty of the court to give to the plaintiff such rulings as would present the case fairly in behalf of the plaintiff as well as in behalf of the defendant, and in such a manner as would- eliminate any element which would naturally and improperly prejudice either party. I am of the opinion, therefore, that the court should fairly have instructed the jury that the plaintiff’s witnesses were engaged in no unlawful practice when they sought to purchase liquor of the defendant during prohibited hours, and for his refusal so to charge that the plaintiff is entitled to a retrial of the action. (People v. Emerson, 6 N. Y. Crim. Rep. 157; People v. Noelke, 94 N. Y. 142; Commonwealth v. Willard, 22 Pick. 476.)

The- judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred, except Kellogg, J., dissenting in opinion, in which Chester, J., concurred.