State v. Colby , 55 N.H. 72 ( 1874 )

The evidence tended to show a sale of liquor to Mrs. Cheney at the respondent's house, — not by the respondent himself, but by his wife; and the remaining question in the case was, whether the respondent's wife acted under the authority of her husband, as his agent and servant, in making the sale.

To satisfy the jury of this, it was clearly competent for the state to prove that the respondent was, at the time of the alleged sale to Mrs. Cheney, engaged in the liquor traffic, at his dwelling-house, where the sale in question was made. The respondent's own testimony, in connection with that of Dr. Currier, concerning his previous traffic in liquors, and the respondent's own declarations in the presence of his wife concerning his sale to Ward, on more occasions than one, tended strongly and legally to establish the authority of Mrs. Colby to make the sale in question.

The evidence of Mrs. Cheney, that she told the respondent's wife while she was drawing the liquor that she did not want her to sell any more to her husband, was competent, as it seems to me, as tending to show, by the silence of Mrs. Colby when thus accosted, her assent to the declaration of Mrs. Cheney, and her substantial admission that she had been and still was accustomed to sell liquor. This has a bearing on the question of her general authority. If there can be any doubt about this, the evidence was, at most, immaterial, and cannot avail to disturb the verdict.

The rules of evidence applicable to this case seem to have been clearly settled in State v. Bonney, 39 N.H. 206, and cases there cited.