
    State v. James A. Merrill.
    November Term, 1910.
    Present: Rowell, C. J., Munson, Watson, Haselton, and Powers, JJ.
    Opinion filed August 9, 1911.
    
      Intoxicating Liquors — Unlawful Furnishing — Witnesses—Cross-Examination — Offers of Evidence — Requisites—Admissibility of Evidence.
    
    In a prosecution for unlawfully furnishing ale to a club, where a member and trustee of the club was called by the State and testified as to the character, purposes, membership, and government of the club, respondent’s offer, on cross-examination, to show by the witness a transaction by which a person claiming to be a brewery agent had permission gratuitously to send some ale to the club in order to secure its patronage, and that the ale shown by the State to have been furnished the club was that so offered by the brewery, and was the only ale received by the club, was not within the scope of cross-examination, but an offer of new matter in respect of which the witness would have been respondent’s.
    To sustain an exception to the exclusion of offered evidence, the offer must be sufficient in form and substance to show that the tendered evidence is admissible.
    
      In a prosecution for unlawfully furnishing ale to a club, an offer of evidence that the only ale received by the club was some gratuitously sent it by a person claiming to represent a brewery, was properly excluded,, as it did not show that the ale was sent without respondent’s agency.
    Information for unlawfully furnishing intoxicating liquor. Plea, not guilty. Trial by jury at the September Term, 1909,. Chittenden County, Miles, J., presiding. Verdict, guilty; and judgment and sentence thereon. The respondent excepted. The opinion states the case.
    
      R. E. Brown and V. A. Bullard for the respondent.
    
      John G. Sargent, Attorney General, and Henry B. Shawt State’s Attorney, for the State.
   Powers, J.

This case was argued and submitted at the November Term, 1910. Some time thereafter, at the instance of the State, the bill of exceptions was amended, and, at the request of the respondent, the case was held for re-argument on the amended exceptions. Subsequently, counsel submitted in writing their further suggestions and the same have been considered.

The respondent was convicted of furnishing intoxicating liquor contrary to law. He was the holder of a license of the fourth class, (to sell liquors to retail licensees) granted by the commissioners of the city of Burlington. The only offence relied upon by the State or shown by the evidence was the furnishing of two certain barrels of bottled Balantyne Ale to the Elks Club, so-called, of the city of Montpelier, on August 31,1909. The State’s evidence tended to show that this ale was shipped by the respondent from Burlington to the Elks Club at Montpelier. That the Club was not a licensee, and that Montpelier was at that time a no-license city. That the ale was duly received and used by said Club, and that it was the only Balantyne Ale had or used by the Club that year.

Two exceptions, only, are relied upon. One raises certain constitutional questions which are admitted to be the same as those involved in State v. Burlington Drug Co., 84 Vt. 243, 78 Atl. 882, — a case argued at the same term and since decided adversely to the respondent’s contentions. The other pertains to the exclusion of certain testimony and arose in this way: Among the witnesses introduced by the State was one Theriault, a member and trustee of the Elks Club. This witness was first used by the State merely to show that the Club had no license. Later in the trial and during its opening, he was called by the State and gave evidence in explanation of the character, purposes, membership, organization and government of the Club. He was cross-examined somewhat regarding these matters, and when he was asked “What are the duties of the trustees with reference to the purchase of articles for the association, for instance, ale?” Objection was made, and the Attorney General said: “Let it be understood that this is the defendant’s evidence, I suppose it is in order to let Mr. Theriault go on?” To which counsel for the respondent replied, “Yes, that is correct.” Whereupon the court allowed the question and the examination proceeded. The witness then- explained somewhat more fully the manner in which the affairs of the Club were managed, and after - covering some other unimportant matters referred to a conversation which he had had with one Fessenden. Being asked for whom Fessenden claimed to be acting, objection was made, and respondent’s counsel made the following offer: “I offer to show by the witness that a man by the name of Fessenden, claiming to represent the Balantyne Brewing Company, asked the privilege of sending, from the brewery in New York, a couple of barrels of bottled Balantyne Ale, as a gratuity to the Elks; that he explained the length of time it would take the ale to come from New York to Montpelier, and that it would foe sent direct from the brewery; that it was given by the brewing company for the purpose of inducing the order of Elks to send orders direct to their brewery for their goods; and that he also explained the length of time before which they wanted goods they would need to order them, and either furnished or agreed to furnish the witness with the proper address from which to order these goods. And we shall further offer to show that the bottled ale that has been testified to by the witness Tine was this ale that this man offered to furnish from the Balantyne Brewing Company; that it was the only order of that kind that the order of Elks had during that season.” Thereupon the Attorney General remarked, “I would like to know if the gentleman expects to couple this with evidence that the ale was the ale sent from Burlington as the State’s evidence tends to show?” To which respondent’s counsel replied, “When we get to that part of the case, we will make our offers.” The objection was sustained, the offer excluded, and the respondent excepted.

It is apparent that the evidence covered by this offer cannot be classed as cross-examination. The subject-matter thereof had not in any way been alluded to in the direct examination of the witness. It was new matter in the investigation of which the respondent’s counsel made the witness his own, — and this is so without regard to his practical admission to that effect. The ruling of the court, therefore, is to be tested by the sufficiency of the offer, and the rule governing a cross-examination has no. application. In order to afford .a sufficient predicate for an available exception to its exclusion, an offer must be sufficient in form and substance to show the admissibility of the tendered evidence. Without this, there will be no error in its rej ection. The-evidence embraced within the offer under consideration was wholly valueless unless it tended to contradict the evidence showing a delivery of the ale'by the respondent, or so to modify or explain the-transaction as to eliminate its criminality. If, in fact, this ale was-shipped to the Club from or by the Brewing Company evidence thereof was pertinent and important. If, on the other hand, it was actually shipped to the Club by the respondent, though in consummation of Fessenden’s promise and by some arrangement with him, it was an illegal furnishing, since it was not and is not now claimed that Fessenden was a licensee. Standing alone the offer fell short of showing the admissibility of the evidénce. It went far enough to show that the ale received by the Club was the ale promised by Fessenden, but not far enough to indicate that it was shipped or furnished otherwise than as the State’s evidence tended to show.

-There is no error and the. respondent- takes nothing. Let execution he done.  