
    The People of the State of New York, Respondent, v. William A. Myers, Appellant.
    Fourth Department,
    November 14, 1906.
    Crime — sale of intoxicating liquors without a license — erroneous charge — judgment of conviction reversed.
    .When in a criminal action for a violation of the Liquor Tax Law for selling liquors without a license, the defendant admits that he had no license, it is error for the trial judge to call to the attention of the jury the fact that the town voted against the sale of liquor as it. had no bearing upon the question of whether sales were actually made by the defendant.
    It is error for the court to characterize the defendant’s witnesses as “vicious, precocious, off-scouring of the street.”
    
      When the defendant admits a previous conviction for violation of the Liquor Tax Law, it is error to charge that the jury may consider the circumstance in ' determining whether having violated it once he would not keep on violating it ' thereafter. The prior conviction, though admissible upon the credibility of the defendant, raises no presumption that he would repeat the oflense.
    The above errors taken collectively demand a reversal of a judgment of conviction in spite of the provisions of section 643 of the Code of Criminal Procedure requiring technical errors to be disregarded.
    Appeal by the defendant, William A. Myers, from a judgment of the County Court of Wayne county, rendered on the 10th day of January, 1906, convicting the defendant of a violation of section. 31 of the Liquor Tax Law, alleged to have been committed on the 24th day of June, 1905, in having sold intoxicating liquors without obtaining a liquor tax certificate; and also from orders made on the 10th day of January, 1906, denying the defendant’s motions for a new trial and in arrest of judgment.
    The defendant was sentenced -to imprisonment in the county jail for the term of six months and to pay .a fine of $750.
    A motion was made to set aside the verdict upon all the grounds stated in section 465 of the Code of Criminal Procedure, and also in arrest of judgment upon all the grounds stated in sections 467 and 331 of the Code of Criminal Procedure, and also upon the ground of newly-discovered evidence. The motions were denied and this appeal was taken.
    
      George Raines and DeL. Stow, for the appellant.
    
      Charles T. Ennis, District Attorney, for the respondent.
    
      
       See Laws of 1896, chap. 113, as amd. by Laws of 1903, chap. 486.— [Rbp.
    
   Kruse, J.:

At the beginning of the trial the defendant admitted that he had not obtained a liquor tax- certificate which permitted him to sell intoxicating liquor, and the sole question of fact was whether he sold to one Henry Soper a bottle of whisky on the 24th day of June, 1905. Soper and his companion were private detectives employed in detecting violations of the Liquor Tax Law in the village of Clyde, Wayne county. They both testified that such sale was made by one Fisher, an employee of the defendant., in the defendant’s presence. This was denied by Fisher and by the defendant and by two other persons who were present, so they testified, upon the occasion when Soper and his companion claim that' the bottle .of whisky was purchased by Soper.

While we cannot say that the evidence is not sufficient to sustain the conviction, it is by no means certain that the jury in reaching that conclusion may not have been improperly -influenced, to the prejudice of the defendant by matters called to their attention in the charge of the trial judge which had no legitimate bearing upon the only question which they were to determine.

We. think the reference to the vote of the town' against the sale of. intoxicating liquor was improper. The defendant did not claim he had the right to sell liquor, and the vote of the town could have ' no bearing upon the question whether he had sold the liquor with the illegal sale of which he was charged and on trial.

FT either can we approve the manner in which witnesses for the defendant were characterized. The court subsequently charged, at the request of the counsel for the defendant, that there was nothing in the evidence apart from the testimony of the private detectives in any way reflecting upon their characters; but, although it was called to his attention by an exception, the trial judge did not modify or specifically withdraw the statement that it was for the jury to say whether the witness Sears was “ a vicious and precocious off-scouring pf .the street.” ...

Beyond that, we think the jury were misdirected as- to the effect of certain testimony. The defendant was a witness in his own behalf. He admitted, that he had theretofore been convicted of violating the' Liquor Tax Law. Regarding this circumstance, the jury were told that they might use this fact “ first for the purpose if it has any influence whatever of reaching, a conclusion in your . mind as to his credibility of words, and you may use it for the further purpose, if it serves any such purpose, of saying whether or not it leads you to believe that he is the kind of a man that would violate the Liquor Tax Law, and if he would violate it once whether - he. is the kind of a man would keep violating it thereafter. In other words, that is useful simply for the purpose of enabling you to reach a conclusion as to what manner of man this defendant is.”

Although it was proper for the jury to consider the defendant’s former conviction upon the credibility of his testimony, it furnished no presumption that lie was more likely to violate again this law, or would continue to violate it thereafter, and it was not proper to be considered as tending to prove the offense with which he was charged and then on trial; and the exception thereto was well taken. (People v. Gibson, 114 App. Div. 600; 99 N. Y. Supp. 1052.)

The district attorney urges upon our attention the provisions of section 542 of the Code of Criminal Procedure, which requires the giving of judgment upon an appeal without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties, and calls our attention to the rule that erroneous rulings may be overlooked and disregarded where the appellate court can see that by no" possibility could the error have worked any harm to the defendant.

We do not, however, consider this casé as belonging to that class. It cannot be said that the matters to which we have. called attention c.ould not have worked harm to the defendant. There was a sharp conflict in the evidence. While some of the matters standing alone might not warrant us in setting aside the verdict and granting a new trial, we think the last ground alone requires that disposition of the case.

The judgment of conviction and the order denying the motion for a new trial should be reversed and a new trial granted.

All concurred.

Judgment of conviction and order denying motion for new trial made pursuant to sections 331 and 467 of the Code of Criminal Procedure reversed, and new trial ordered upon questions of law only, the facts having been examined and no error found therein.  