
    Third Appellate Department,
    January Term, 1905.
    Reported. 101 App. Div. 265.
    The People of the State of New York, Respondent, v. Fred Kastner, Appellant.
    Sale of Malt Rose—Proof, by a chemist for the prosecution, of the analyses of Malt Rose alleged to have been sold—When it may be controverted by proof of the analyses, made on behalf of the defendant, of other samples.
    Upon, the trial of a person charged with the offense of selling intoxicating liquor without a liquor tax certificate, the witnesses for the prosecution testified that on September 22, 1903, they went into a place where the defendant was tending bar, and that the defendant there sold and delivered to each of them a glassful of a drink called Malt Rose, of which they drank part; that while the defendant was momentarily in an adjoining room one of the witnesses placed a portion of the contents of his glass in a hottle; that the same evening they took the bottle to one Gann and left it with him. Gann testified that he took the bottle and contents to one Priest, a chemist, and left it with him for analysis. Priest testified that he analyzed the contents of the bottle and found that it contained about five and forty-three one-hundredths per cent, of alcohol.
    The defendant admitted selling each of the witnesses a glass of Malt Rose, but denied that either of them had put any portion of his drink into a bottle, and also denied that he was absent from the bar while they were there. The defendant’s counsel called a chemist and proved by him that on January 14,1904, he obtained from the defendant’s place a sample of Malt Rose for the purpose of analysis; that on several occasions prior to that date, one of them being October ninth, he had analyzed the liquor commonly called and sold as Malt Rose. The defendant’s counsel then asked the witness what the analysis showed, stating that he proposed to connect it and show that it was the same kind of liquor that was sold to the People’s witnesses. The court refused to admit the evidence, stating that the defendant could not “prove any analysis of liquor obtained in January as bearing on liquor in September.”
    It appeared that Malt Rose was a known article of commerce, and the evidence indicated that it was made from some definite receipt or formula.
    
      Held, that the exclusion of the testimony of the defendant’s chemist constituted error requiring the reversal of a judgment of conviction;
    That the defendant’s chemist should have been allowed to testify what he found the liquor to consist of;
    That if the different analyses made by him varied so much that it was plain that the specimen procured in January was no criterion of what the specimen in September contained, -they would be ineffective to discredit the analysis made by the People’s chemist, or to discredit the claim that the latter chemist had received a portion of what the defendant sold;
    That if the various analyses made by the defendant’s chemist showed that the constituents in the samples used were the same or substantially so, the defendant had a right to prove the analysis of a brand similar to that which he testified he had sold, as tending to discredit either the accuracy of the analysis made by the People’s expert or the truthfulness of the People’s claim that the latter expert had analyzed the same drink that the defendant sold.
    Per Parker, P. J., and Houghton, J.; Smith, Chase and Chester, JJ., concurred in result.
    Appeal by the defendant, Fred Kastner, from a judgment of the County Court of St. Lawrence county, entered in the office of the clerk of the county of St. Lawrence on the 28th day of January, 1904, upon the verdict of a jury, convicting the defendant of the crime of violating section 31 of the Liquor Tax Law (Laws of 1896, chap. 112, as amended by Laws of 1903, chap. 486) in selling liquor without a liquor tax certificate, and also from an ordei denying the defendant’s motion for a new trial.
    
      
      Theodore H. Swift, for the appellant.
    
      Clarence S. Ferris, for the respondent.
   Parker, P. J.:

The People’s witnesses, Beach and Roach, testify that they went into the barroom on September 22, 1903, where the defendant was tending, and asked what the defendant was selling there; that the defendant replied that he sold soft drinks, naming some, and among them a drink called “Malt Rose.” The witnesses asked for the latter drink, and a glassfull was poured out for each; that they drank part, and that Beach put a part from his glass into a small bottle he had there. This change from glass to bottle was made while the defendant had for a moment stepped into an adjoining billiard room that was also under his charge. They then paid for the drinks and went away. That same evening they took the bottle to one J. L. Gann, and left it with him. Gann testified that he took the bottle and contents the next day to Prof. Priest of Canton, and left it with him for analysis. Prof. Priest, a chemist, testified that he analyzed it and found that it contained about five and forty-three one-hundredths per cent of alcohol.

This was substantially the case made against the defendant.

The defendant testified that the witnesses asked for the “Malt Rose,” and that he sold and delivered to each a glass thereof; that each drank part, and he threw away what was left, washed the glasses and put them away. He denies emphatically that either of the men put any of his drink into a bottle or carried any of it away, and he denies that he was called from the bar while they were there. He, and also one of the proprietors of the hotel, .testifies that at that time there was no lager beer at the hotel.

During the trial the defendant’s counsel called Prof. Williams, a chemist, and proved by him that on January 14, 1904, he obtained a sample of Malt Rose from the Albion House bar for the purpose of analysis. He also testified that on several occasions prior to that date, one of them being October ninth, he had analyzed the liquor commonly called and sold as “Malt Rose.” Defendant’s counsel then asked the witness what the analysis showed. This evidence was objected to and excluded under the defendant’s exception. The defendant then stated that he proposed to connect it and show it was the same kind of Malt Rose, and was the same thing that was sold to those two witnesses, to which the court replied that he could not“prove any analysis of liquor obtained in January as bearing on liquor in September.” It also appears from a further discussion of its admissibility, at folios 111 and 112 of the appeal book, that the court considered it not pertinent to any issue that was really in the case, ■ for the reason that, inasmuch as the defendant denied specifically that any of the liquor that he sold was ever carried away by Beach and Roach, none could have been analyzed by Prof. Priest. The trial court substantially held that unless some of the liquor sold be defendant had been taken away by Beach there was no proof of what that liquor was, and hence no violation of the law was shown. But that if defendant’s statement was wrong in this particular, and some of the liquor was taken to Prof. Priest and analyzed by him, a comparison of such analysis with others was irrelevant because defendant’s counsel did not criticise the accuracy of that of Prof. Priest. That the question was really narrowed down to whether a part of what defendant sold was carried away, and the case was left to the jury entirely upon that theory. But the one question was submitted to the jury, and the defendant’s guilt or innocence was made to depend upon it.

But it seems to me that there was a further question presented by the evidence. The plaintiff’s witnesses testify that they asked the defendant to give them “Malt Rose,” and the defendant testified that he did so. Concede that some of that very drink was thereupon delivered to Prof. Priest, whether or not it was correctly analyzed and showed five and forty-three one-hundredths per cent, of alcohol is still a question to be determined. The defendant’s counsel did not concede that if the drink which the defendant sold was the one that Prof. Priest analyzed, it was a correct analysis. His statement that he could not dispute Prof, Priest’s analysis was because he had no satisfactory proof of where that liquor came from. But he insisted that if it was the drink that the defendant sold, viz., “Malt Rose,” it did not contain alcohol enough to render its sale a violation of the law. He asked, therefore, to show what an analysis of the drink “Malt Rose” showed it to be composed of.

It sufficiently appears, I think, that there is such a drink sold in the market under that name; and from what Prof. Williams testified, it is fair to infer that it is made from some definite receipt or formula. He had analyzed it several times, and speaks of it as a known article of commerce. It also appears elsewhere in the case that it was such an article of commerce. Under such circumstances, he should have been allowed to testify what he found it to consist of. If his different analyses varied so much that it was plain that a specimen procured in January was no criterion of what a specimen in September would contain, then they would be ineffective to discredit Prof. Priest’s analysis, or to discredit the claim that he had received a portion of what the defendant sold. But if various analyses showed that the constituents in the samples used were the same or substantially so I am of the opinion that the defendant had the right to prove the analysis of a brand similar to that which he testified he sold as tending to discredit either the accuracy of Prof. Priest’s analysis or the truthfulness of the People’s claim that he had analyzed the same drink that the defendant sold.

The defendant claims that what he sold the People’s witnesses was “Malt -Rose” and that it was an inoffensive drink containing very little, if any, alcohol. It seems to me he had the right to prove both of these facts. He might prove the first by his own oath, but still he might be short of a defense until it appeared what the drink consisted of. The evidence which he offered to prove this latter fact might have established it, and it was, there fore error to exclude it.

For this reason the judgment should be reversed and a new trial should be ordered.

All concurred; Smith, Chase and Chester, JJ., in result.

Judgment of conviction reversed and new trial ordered.  