
    Fourth Appellate Department,
    January, 1899.
    Reported. 37 App. Div. 630-
    The People of the State of New York, Respondent, v. Joseph Matthews, Appellant.
    Appeal by defendant from judgment of conviction adjudging him guilty of violating the Liquor Tax Law in keeping his place of business open between one and five .o’clock a. m.
    
      Josiah Perry, appellant’s attorney.
    The court erred in excusing juror Foley upon the people’s-challenge, and the defendant can take advantage of this error.
    
      (People v. McQuade, 110 N. Y. 303-306; Hildreth v. City of Troy 101 N. Y. 234.)
    A juror who swears he can decide the case .upon the evidence, is a competent juror, even though he would take into consideration, before rendering a verdict his opinion of the Liquor Tax Law. (Bablo v. People, 80 N. Y. 484; People v. Coonette, 92 N. Y. 85; Criminal Code, sec. 376.)
    The court should set aside the verdict. The question is not whether there is a scintilla of evidence to sustain it, but whether-there is any upon which a jury could find a verdict. (Dwight v. Germania Ins. Co. 103 N. Y. 159; Hall v. Stevens, 116 N. Y. 210; Bulger v. Rosa, 119 N. Y. 264; Linkhauf v. Lombard, 137 N. Y. 426.
    A person may be asked the direct question as to whether a person he has seen was intoxicated. (People v. Eastwood, 14 N. Y. 562; Rice on Evidence, Vol. 3, p. 143; DeWitt v. Bailey, 17 N. Y. 352; People v. Gaynor, 33 App. Div. 98.)
    It was error for the court to prevent the defendant’s counsel in summing up from discussing the effect of the conviction of the defendant. (People v. Cassiano, 30 Hun, 388, Thompson on Trials, Vol. 1, secs. 949-951.)
    It is error to abridge defendant’s right to be heard on all the facts and circumstances which are in evidence. (Beasley v. State, 71 Ala. 328; Abbott’s Crim. Brief, sec. 699; Rumsey Prac. Vol. 2, p. 305.)
    
      George S. Klock, attorney for respondent.
    The question of defendant’s guilt or innocence was purely a •question for the jury. (People v. Tuczkewitz, 149 N. Y. 240; People v. Schooley, 149 N. Y. 104; Carrington v. People, 6 Parker’s Crim. Rep. 343.)
    The question as to whether the people’s witness, Myers, was intoxicated, was a collateral question, and defense was bound by cross-examination of Myers. (Carpenter et al. v. Ward, 30 N. Y. 243; Plato v. Reynolds et al., 27 N. Y. 586; Stokes v. People, 53 N. Y. 164.)
    The court did not err in excusing the juror Foley. (Greenfield v. People, 74 N. Y. 277; People v. Bodine, 1 Denio, 281-305; People v. McLaughlin, 73 St. Rep. 496; People v. McQuade, 110 N. Y. 300; People v. McGonegal, 136 N. Y. 62; People v. Carolin, 115 N. Y. 658.)
    It was not error for the court to instruct defendant’s attorney, in summing up, to abstain from stating to jury the sentence that would follow conviction and the consequence of it. (People v. Cassiano, 30 Hun, 388.)
   If the judgment in being in the alternative is erroneous, it may be corrected on the appeal.

Judgment modified by striking out the provision for imprisonment in case the defendant fails to pay the fine, and, as thus modified, judgment affirmed. Judgment to be entered and certified to the Oneida County Court, pursuant to section 547 of the Code -of Criminal Procedure.

All concurred, except Ward, J., not voting.  