
    
      City Council vs. John D. Talck.
    
    Process for selling and exposing for sale goods in defendant’s shop on Sunday. The proof was that the defendant kept a retail liquor store ; that on Sunday his store door was open, and his liquors were exposed; that several persons were in the store, and one of them was seen with a tumbler in his hand; that the weather was very warm ; that the shop doors were the only means of ventilating the room in which the defendant usually sat and ate; and defendant’s clerk testified that nothing was sold on that day. On this proof, the jury found the defendant guilty, and the Court of Appeals granted a new trial, on the ground that the verdict was without evidence.
    
      Before the Recorder, in the City Court, July Term, 1831.
    The report of the Recorder is as follows :
    
      “ Process for exposing goods, &c. for sale, on Sunday, the 15th May.
    
      Miller, sworn. — Defendant lives and keeps a grocery store, license No. 3, in Elliott street. Witness was there on Sunday, the 15th May, and saw his door open and his liquors exposed. There were five sailors there, and one had a tumbler in his hand. Witness called defendant, and told him his doors ought to be shut; he replied it was a boarding house ; witness answered that could not be, as he, defendant, had a retail license, No. 3. Witness has no interest, but if he has, is willing to release it; his visit to defendant was at 7 o’clock on said day. Witness was alone ; he saw no liquor sold, but liquors exposed for sale. Did not see defendant offer any for sale.
    
      Plane, sworn for defendant — Knows defendant’s house j has seen him eat and drink down stairs; he may have one or two boarders; there is no other entrance to the house than two front doors — no yard; if defendant wants a draft of air, should think he must open his doors; the alley way is closed.
    
      Kahl, sworn. Was defendant’s clerk, and lived with him 15th May last. Saw Miller come there that day ; defendant eats in the store ; they could not live there without opening the iront doors ; there was no liquor sold that morning that he knows of. Three sailors came there, and one had a bit of bread — did not see one take a drink that morning, or buy any thing; the liquors were not put up there for sale, they always stood there; can’t recollect if he (witness) sold any thing that day.
    
      T. O. Elliott, Esq., visited the place as a commissioner of health ; there is no entrance from the street, except through the house or store doors — the door in the alley is shut up.
    
      Miller, again called. There is a large door in defendant’s yard; there is a second story to the house.
    
      Kahl, again called. There are two bed rooms above, but only one below — the side door and back door of that room lead to the kitchen.
    
      Neve, sworn. Only one room below, and that is defendant’s shop or store.
    Here the case closed, and was argued.
    I stated to the jury that the proof was entirely presumptive — that I had no doubt the frontdoors were opened for the purpose of ventilation and comfort; but defendant might have combined therewith the project of selling— that it was for them to say, if they could satisfactorily draw the inference from the testimony, that defendant exposed his liquors for sale on that Sunday, as Miller had testified, and if so, they might find against him; it was a question entirely for them, and not for me. They found for the plaintiff.
    There was a second case against the same defendant for a similar violation of the ordinance, on 5th June, Sunday.
    
      Lozier, sworn. Defendant keeps a store in Elliott street; witness was there with Mr. Gaillard, the marshall, in the morning, who warned defendant against keeping his shop open. In the same evening, 5th June, about 9 o’clock, witness went there and found there several sailors, with two or three women, standing at the counter laughing and making a noise; both doors on the street were open' — the windows were not; saw no money received for liquors— the liquors were exposed as usual for sale.
    The counsel here agreed that the same testimony which had been given in the first case, as above set forth, should be received in this case by the jury, who were so informed, and the case was submitted to them ; the Judge did not think any charge necessary, and they found for the plaintiff.”
    The defendant appealed, and now moved for a new trial, on the following grounds :
    1st. Because the verdicts were founded on presumption alone.
    
      2. Because even the presumption raised by the plaintiff, was rebutted by positive proof, which was disregarded.
    3. Because there was no greater exposure of the shop than necessity required ; and the liquors in it were not exposed for sale by defendant, or any one else.
    4. Because the verdicts were against law and evidence, and the charge of the .Recorder.
    
      Cross, for the motion.
    Axon, city attorney, contra.
   Curia, per

JghnsoN, J.

An ordinance of the city council, of May, 1801, imposes a penalty of $ on any person who shall sell or publicly expose for sale, any goods, wares or merchandize on the Lord’s day ; and two several actions were brought against the defendant, to recover the penalty for a violation of the ordinance on two several days.

The defendant kept a retail liquor store in Elliott street; and the only evidence (which was the same in both the cases) was that his shop door was open, and that several persons were in the house, and that on one occasion, one of them had a tumbler in his hand; but there is no proof that he sold any thing, or that he offered or exposed anything for sale, except the fact of the doors being open, and persons being therein ; and the presumption arising from this circumstance, if, indeed, any presumption of guilt can arise from it, is repelled by proof that the weather was very warm, and that these doors were the only means of ventilating the apartment in which defendant usually sat and ate, and by the evidence of his clerk, that nothing was sold on either day. The jury .certainly had the right to disbelieve the clerk, and their powers in relation to the inferences to be drawn from facts proved, are very great. But I am ignorant of any rule which authorizes the presumption of a fact from the proof of others, not necessarily leading to that conclusion, and particularly when more satisfactory evidence is known to exist. The ordinance does not make it an offence to open a shop door on Sunday, for the purpose of ventilating the apartment — nor does it punish the admission of persons into it — nor is it presumable that the inhabitants would willingly submit to a restraint which would, in some degree, exclude them from society, deprive them of a necessary comfort in summer, and probably, in confined situations like this is described to be, the preservation of health ; and all that is proved here is entirely consistent with the innocence of the defendant, and the most profound respect for the ordinance. The law presumes the innocence of the party accused— guilt must be proved — and if we give the defendant the benefit of this presumption, we ought to conclude, in the absence of proof, that if his visiters attempted to seduce him to violate it, as a good and faithful citizen he answered, “ the law forbids it, and I won’t violate it.” If proof that defendant kept a shop, and that persons were seen in it on the Sabbath, constitute proof of the violation of the ordinance, it is not improbable that an action might be maintained against every shop keeper in the city, for every Sabbath in the year. We conclude, therefore, that there is no proof authorizing the presumption of defendant’s guilt. A new trial is therefore ordered.

0’Neall,-J. concurred.  