State v. Shelton

Citations

• 16 Wash. 590
• 48 P. 258
• 1897 Wash. LEXIS 364

Syllabus

<p>INTOXICATING LIQUORS — UNLICENSED SALE — BURDEN OF PROOF — EVIDENCE — WITNESS — CROSS-EXAMINATION.</p> <p>In a prosecution for selling intoxicating liquors without a license therefor, the burden is upon the defendant to show that the sale was made under a license. (Gordon, J., dissents).</p> <p>In a prosecution for selling whiskey without license, the fact that a witness testified to the sale of blackberry brandy cannot be urged as error, when the prosecution made no attempt to pursue the subject and there was no motion to strike the answer on the part of the defendant.</p> <p>The refusal to instruct the jury to find a verdict for defendant, in a prosecution for selling liquor without a license, is not erroneous, when the testimony of the prosecuting witness, an unwilling one for the state, shows that he purchased whiskey from defendant about six months prior to the finding of the indictment against him, although the testimony of defendant, they being the only two witnesses, is flatly contradictory.</p> <p>Where a witness has testified to only two purchases of whiskey at defendant’s drug store, one from defendant and the other from an employee, and his recollection in regard to the purchase from defendant has been shown to be uncertain, the defendant may properly cross-examine him as to the date of his purchase from the employee, for the purpose of testing his memory as to the sales testified to.</p> <p>Where the prosecuting witness, in the trial of an indictment for selling intoxicating liquors, has testified that he purchased whiskey at defendant’s drug store and made an entry thereof in a poison register kept for the entry of sales of liquor and poisons, and the defendant has testified that there was no entry of sale to witness except of Paris green, it is error for the court to exclude testimony as to the date of such purchase, and also to exclude testimony as to the registry book kept by defendant, on the ground of immateriality of the evidence.</p>