People v. Roth

200 N.W. 132, 228 Mich. 447, 1924 Mich. LEXIS 799

• Court: Michigan Supreme Court
• Decided: October 6, 1924
• Docket: Docket No. 93.
• Status: Published

Opinions

I cannot agree with Mr. Justice BIRD that the judgment of conviction in this case should be reversed. My Brother finds reversible error in the admission of testimony relative to the arrest of one Melvin Hall in defendant's place of business and the finding of a small bottle of whisky in his pocket. Hall was the defendant's bartender. He was behind the bar at the time of his arrest and had the whisky in his pocket. The defendant was not present, but there is evidence that Hall sold whisky on various occasions to the defendant's customers in his presence. Other testimony tends to show that defendant's method of doing business was not to sell whisky over the bar, but from flasks carried in the pocket. Witness Greenwald testified:

"Mr. Roth never sold me any whisky over the bar. He took me behind a kind of a stall and he always got the bottle out of his hip pocket. Any time I bought liquor from Mr. Roth he got the bottle out of his pocket."

In view of these facts and the fact that defendant knew that Hall was selling whisky for him, it cannot be said that there was no evidence that Hall carried liquor in his pocket for the purpose of selling it to the defendant's customers, and that the defendant had knowledge of it. In my judgment the court did not err in admitting this testimony.

Again it is held by my Brother that testimony of the search of the defendant's place on May 1, 1923, and the finding of a gallon of moonshine whisky in possession of one August Kuschniak was incompetent and so highly prejudicial that, though it was stricken out, the error in admitting it was not thereby cured. I think the testimony was competent and should not have been stricken out. In considering its admissibility it should be borne in mind that the defendant is not here being tried on a charge of unlawful possession of liquor, but for keeping a place. Each is a separate and complete offense under the statute. The defendant was acquitted of the unlawful possession so we must assume that the liquor was in possession of Kuschniak. Granting that it was, if it was in Kuschniak's possession in the defendant's place of business for the purpose of sale to his customers, that fact would be competent evidence on the trial of a charge for keeping a place. The question here is not who had possession of the liquor but whether it was stored in the defendant's place of business for sale. The defendant says that he did not know it was there, but he had charge and control of the place and has offered no explanation as to how it got into the basement without his knowledge. The officers found a gallon of moonshine whisky divided into half-pint, pint and quart bottles setting on a table in the basement. The evidence shows that the defendant was selling moonshine whisky in connection with his soft drink business, and that when he wanted a bottle he went to the basement for it. The witness Wilder testified:

"One boy paid for four drinks, a dollar, and I bought the next drink and paid a dollar to Mr. Roth. The drinks were moonshine whisky. Mr. Roth only had a little in the bottle, then went into the basement and brought up another bottle."

It is undisputed that the liquor was stored in the defendant's basement and was in possession of Kuschniak when the officers found it on the 1st of May, 1923. It matters not that the defendant was acquitted by a jury in a trial wherein he was charged with its unlawful possession, or that Kuschniak pleaded guilty. If it was there for the purpose of sale, though in possession of Kuschniak, and the defendant had knowledge of it, he would be guilty of keeping a place where liquors are stored for sale. The record contains many facts and circumstances tending to show such knowledge on the part of the defendant. The testimony was competent and the defendant benefited by the action of the court in striking it out.

A similar situation exists as to the testimony of the finding of liquor in the defendant's place on the 22d of June, 1922. The defendant was arrested, charged with unlawful possession, and that charge had not been disposed of when the instant case was tried. It is claimed that testimony of possession on the 22d of June cannot be used against him in this case, because of the other pending charge. The information in the instant case charged the keeping of the place, etc., on the 23d of December, 1923, and on divers other days between that day and the 1st of December, 1922. The incident of June 22, 1923, is included in this period. The fact that another case was pending did not render incompetent the testimony as to possession of liquor during the period charged in this information. If counsel for the defendant were correct in their contention, it would not be possible to use this testimony against the defendant in either case. The objection that the prosecuting attorney only offered evidence "that a case of that character was pending against the defendant," and that the defense had no opportunity to cross-examine the complaining witness, is not borne out by the record. Testimony of all the witnesses who had personal knowledge of the facts was introduced, and the fact of the other pending case was shown by defendant's counsel as a basis for their objection. The testimony was competent.

I have examined the record with care and am unable to discover any reversible error.

The judgment of conviction is affirmed.

CLARK, C.J., and SHARPE, MOORE, STEERE, and FELLOWS, JJ., concurred with McDONALD, J.