#### PEOPLE v. OWENS.

(Supreme Court, General Term, First Department.

December 18, 1895.)

Intoxicating- Liquoes—Sale on Sunday—Evidence.

Testimony of an officer that defendant, with his sleeves rolled up and an apron on, stood behind the bar of a saloon whose doors were fastened; that back of the bar were bottles with labels indicating that they contained spirituous liquors; that three persons besides defendant were present; and that on the bar stood two glasses, which were removed before witness could reach them,—is insufficient to prove a charge that defendant sold, or exposed for sale, or gave away, spirituous liquors on Sunday.

Appeal from court of special sessions, New York county.

James Owens was convicted of violating the excise law, and appeals.

Reversed.

Argued before VAN BRUNT, P. J., and PARKER, J.

Emanuel M. Friend, for appellant.

John D. Lindsay, for the People.

PER CURIAM.

By the judgment before the court, the defendant was convicted of a violation of that provision of the excise law which declares it to be a misdemeanor for “any person who, whether having a license or not, shall sell or offer or expose for sale, or give away any strong or spirituous liquors, wines, ale or beer: (1) On Sunday.” The evidence upon which conviction was based was furnished by a police officer, who testiAed that on June 30, 1895, he visited a liquor store, in which the defendant was at the time, with his sleeves rolled up, and an apron on. When the officer reached the premises, the door was closed and fastened, but he obtained entrance through a window, and found within three men besides the defendant; the latter being behind the front bar, back of which was the back bar, which contained glasses and labeled bottles, such as are usually found in such places. Upon the front bar there were two glasses. To the question, “What was in them?” he answered, “They were removed before I could get to the bar.” To the further question, “Something in them?” he replied, “Yes, sir; a small quantity of liquor.” It is evident from the testimony which preceded the last answer, as well as that which followed it, that this was a mere guess on the part of the officer. He saw nothing poured into the glasses; they were removed before he reached the bar; and he did not examine them afterwards for the purpose of ascertaining *756whether they contained liquor. The fact that bottles bearing labels indicating that they contain spirituous liquors are stationed in their usual places upon a back bar is not of itself sufficient to support a conviction for a violation of the statute; for such a fact, standing alone, will not support a finding that the owner or person in charge was selling or offering or exposing for sale any part of the contents of such bottles. A person charged with violating the excise law, like all other alleged offenders against the law, is presumed to be innocent until proof of his guilt is furnished; and this is not accomplished by showing that the bottles were standing unused behind the bar. As there is no proof that any of the contents of the bottles were either sold or given away, it was necessary to prove other facts and circumstances to support a finding that their exposure was for the purpose of sale. There were three persons in the store, the doors of which were fastened; but whether they were customers of the store or friends of the defendant does not appear, nor were they seen to drink anything whatever. It does not appear that the two glasses on the bar were nut there for their use, or had been used by either of them, nor whether they had contained spirituous liquor of any character. The evidence, therefore, was insufficient to justify a finding by the court that the defendant had violated the statute as charged in the complaint, and he should have been discharged.

The judgment of conviction should be reversed, and a new trial granted.