The Somerset reporter., 1902-03-27

The state vs. Henry f. Libby Of Pitts
cid, druggist, indicted under the nui
anee act, came up for trial, Mondal
fternoon. The -tate had no evidence
, offer bat the U. =. license recort
pom which the indictment was foun6
y the grand jury. Geo " Cover
so E, county attorney for the State ant
. W. Manson, Esq appeared for TIA,
espondent The arguments were mad
londay afternoon and on Tuesday morn
X Judge savage. after addressing tht
lry briefly, directed the jury to brinl
} a verdict for the defendant, which
as done and the respondent was dis
harged
Following is the full text of Judg,
avage's charge as furnished US By th,
indness of Charles ". small, eour
Gentlemen Of the jury
have been reading
again carefully the provisions Of the
statute, section 40 of chapter II, re
lating to the payment of United
States Special Tax as liquor seller,
and concerning which some discus.
sion was had yesterday afternoon.
And upon more careful examina-
tion of it | am inclined to think that
the position proposed by Mr.. Man
son is the true Interpretation of that
statute. 1t reads 1.-THE payment of
a United states special tax as Ii.
quor seller or notice of any kind in
any place of resort indicating that
Intoxicating liquors are there sold,
kept, or given away unlawfully,
shall be held to be prima facie evil
dence that the person or persons
paying said tax or the party or par
ties displaying such notices are com
mon sellers" Either the payment
of tax or the keeping of place in
which there was notices indicating
that liquors were there sold would
be prima facie evidence that they
are common sellers Then the re-
naming clause, which perhaps may
have been intended by the person
who drafted it to cover both classes,
the payment of tax and the post
ing of notices, says the premises so
kept is common nuisance 1t
seems to oe limited to the premises
which the adverb $50" can apply is
the posting of notices. Premises
on which notices are so posted indi
eating that liquors are sold unlaw.
fully are common nuisances. And |
shall 80 rule. But that does not
prevent the use of evidence tending
TO show that persons charged with
violation of the liquor law have
paid United States revenue tax;
the simple effect of which Is, 30 far
as the United States is concerned,
that it furnishes the government
with revenue and the man who pays
it can not be prosecuted; that is the
effect of it. 1t is not a license; it
simply prevents him being prosecut-
ed by the United States.
have been considering the case
so far as regards the payment of
special tax, and, assuming all the
County attorney claims in regard to
it to be true as a matter of fact, the
question is whether it has sufficient
probative effect to warrant convic-
ton. The testimony is admissible
in any case of nuisance but | think
that In many cases there must be
something more. Now, inasmuch
as this is case which may be of
some importance to the county at
torney in his administering the law,
| think that | shall in ordering a
verdict, which intend to do, state
as clearly as | can the reasons why |
do so, that there may be no misun-
Outstanding about it.
The case was said by the county
attorney yesterday to be test case.
So far as | understand it he means
by that that he desired, for his as
sistance, to aid him in his admins
tration of the law, to know how
much effect twelve impartial men
would give to the fact that a man
had paid $25 az revenue tax, how
far that would have a tendency to
show that he was engaged in the I'M
lawful sale of liquor. OF course if a
man pays his money and pays tax
of that sort, the natural inference is
that he has purpose on doing it;
that he wouldn't do it unless he ex-
pected to obtain some advantage by
it. Men don't pay out their money
for nothing ordinarily, and that is
really the effect and force of evil
dence of that character. But of
course he may explain, there may
be reasons why man would be will
ing to pay tax, even if he didn't
propose to violate our law. There
is no evidence in this case however
one way or the other on that PROPOSE
ton; but nevertheless it is subject to
an explanation. The statute treat
ing of this general topic, although |
have ruled that it is not applicable
to this case, makes the payment of a
special tax prima facie evidence;
that is to say, not conclusive and not
necessarily sufficient The jury still
in all cases have the right and it is
their duty to weigh that fact of the
payment of tax as they would any
other evidence. And if they are
satisfied from il reasonably, if their
judgment is that man wouldn't
have paid his money unless he in
tended to make use of il, they have
the right to find from that very fact
alone that he is yiolater of the law.
They are not obliged To so find I'M
less convinced but they have no dis
erection about it, 1t ia not matter
of discretion whether courts and
juries will find a man guilty or not;
the court and the jury have no dis
erection about matters of law of this
kind. The county attorney does
not mean To be understood, appre-
bend, that he wishes, or did wish,
the jury to say whether they thought
the law ought to be enforced or not,
because that is not the business of
the jury. 1t is not the business of the
grand jury. The only business we
have here is to find out whether the
law has been violated or not, and if
it has been, our duty is plain; there
is no discretion about it. In hear
ing the evidence and giving the lepiti-