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tainly dictate an affirmative answer. Facts were within the knowledge of the witness called by the plaintiff for the purpose of establishing the seriousness of the injury which he sustained, which concededly would demonstrate whether such injury was as serious as claimed or not. Under those circumstances, plaintiff ought not to be permitted to withhold such information from the jury. It is very natural to suppose that, if such information would have tended to corroborate plaintiff's claim, it would have been called out by him; and the conclusion is almost irresistible that he omitted so to do because he knew the information possessed by the physician as the result of the examination made by him would be hurtful to his claim if communicated to the jury. It is no answer to the proposition that the defendant called out the fact that the X-ray examination had been made, and might have asked what the result of such examination was. The defendant was not called upon to take the chances of an answer by a hostile witness. The question whether or not the plaintiff's fingers and wrist were seriously and permanently injured was evidently regarded as important, and one which would materially affect the plaintiff's right to recover, or at least the amount of the verdict; and early in the course of the trial, before Dr. Weigel, who had made the X-ray examination, had been called by the plaintiff and sworn, it appeared that such examination had been made by him; and upon his cross-examination the plaintiff's attention was again called to the fact, so that the omission to inquire as to what the X-ray examination disclosed cannot be attributed to oversight or mistake.

The precise question involved was decided by this court in Milliman v. Railway Co., 3 App. Div. 109, 39 N. Y. Supp. 274. That was an action brought to recover damages for injuries sustained by the plaintiff, who was riding with his daughter along one of the streets of the city, which was also occupied by defendant's railroad. One of the cars, which was following the phaeton, collided with it, and the injury resulted. The important issue litigated was whether the collision occurred immediately after the horse entered upon the track, or whether the car followed the phaeton for a distance of 125 feet or more, overtook it, and ran it down. The plaintiff's daughter, who was called as a witness by him, and who, as appeared by her testimony, had opportunity to know the relative positions of the horse and car when the horse entered upon the track, was not interrogated by counsel for either litigant in regard to such positions. In his charge the learned trial justice called the attention of the jury to the fact that the daughter had not been examined upon this issue, although she had the same opportunity of knowing the facts as the plaintiff, and charged, in substance, that such omission might be taken into account by the jury in determining on which side the truth lay. Plaintiff's counsel duly excepted to the charge, and upon appeal urged that it presented such error that the plaintiff's motion for a new trial should have been granted. In considering the question, Justice Follett, in writing the opinion for the court, said:

"In case a litigant fails to produce a person known to be friendly to him and to his cause, who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that

person would not have been favorable to the party. Kenyon v. Kenyon, 88 Hun, 211, 34 N. Y. Supp. 720, and cases there cited; Thomp. Trials, §§ 989, 1045; Tayl. Ev. (8th Ed.) § 117. * I think the rule is applicable to a case in which a party fails to interrogate a friendly witness, so situated as to be presumed to have knowledge of the existence or nonexistence of the vital facts in issue, as it is to the case of a failure to produce such a witness. Indeed, I think the omission to interrogate a friendly witness in respect to facts presumably within his knowledge is more significant than the failure to call such a person as a witness, and that the presumption that the testimony would not have been favorable to the party's case is stronger than the one which arises from the failure to produce such a person as a witness."

The learned counsel for the plaintiff in the case at bar concedes, as did the plaintiff's counsel in the Milliman Case, that the rule, as stated, applies to a party who fails to produce a friendly witness who has knowledge of facts material to an important issue. The cases of Kenyon v. Kenyon, 88 Hun, 211, 34 N. Y. Supp. 720, Sherlock v. Insurance Co., 21 App. Div. 18, 47 N. Y. Supp. 315, and Carpenter v. Railroad Co., 13 App. Div. 328, 43 N. Y. Supp. 203, fully sustain the correctness of that proposition; but plaintiff's counsel contends, as was urged in the Milliman Case, that it does not apply to a party who fails to interrogate a friendly witness, called and sworn by him, as to facts material to an important issue, although known to be within the knowledge of such witness. There is no reason for such a distinction, and, if made, it would only enable a party to avoid the effect of the rule adverted to by calling a friendly witness who had knowledge of facts pertinent to a material issue, or by compelling his adversary to take the hazard of interrogating the witness as to such facts. The defendant was not bound to prove its defense by plaintiff's expert physician, who, at plaintiff's request, made a careful examination of the injured parts to ascertain the extent of their injury; and the burden was upon the plaintiff not only to produce him, but also to interrogate him as to facts within his knowledge relating to the important issue, or expose himself to the hazard of unfavorable inferences. A party seeking to recover for serious injury to his side and wrist ought not to be permitted to call as a witness an expert physician, who at his request examined and learned the condition of both, and interrogate him only as to the condition of one, without exposing himself to the hazard of having the jury infer that, if the witness had been asked as to the condition of the other, his answer would have been unfavorable to the party calling such witness. The rule laid down in the Milliman Case, supra, is logical. Its application will tend to prevent the suppression of the truth in the trial of causes, and should be adhered to and followed. It follows that the order appealed from should be affirmed, with costs.

Order affirmed, with costs. All concur.

(74 App. Div. 542.)

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PEOPLE v. ANDRUS.

(Supreme Court, Appellate Division, Fourth Department. July 8, 1902.) 1. INTOXICATING LIQUORS-SALE TO MINOR-EVIDENCE OF SEPARATE OFFENSE. In a prosecution for selling liquor to a minor in violation of Liquor Tax Law, c. 112, § 30, the prosecuting witness, after giving evidence of one of the sales charged in the indictment, said that he bought liquor of accused "on other nights." The prosecuting attorney stated that the evidence was offered to show guilty knowledge or intent to violate the law, but afterwards claimed that all the sales were at the same time and within the indictment. The evidence showed that witness was alone and purchased liquor in a bottle on the occasion to which the objection related, but was in company with others, and drank from a glass on the occasion mentioned in the indictment. Held, that it was reasonably clear that the evidence objected to related to a different time from the one charged in the indictment, so as to be inadmissible under section 30, providing that each alleged sale shall be a complete offense.

Appeal from Yates county court.

Peter J. Andrus was convicted of selling liquor to a minor, and appeals. Reversed.

The indictment in this case contains three counts, each of which charges the defendant with a violation of section 30 of chapter 112 of the Laws of 1896, known as the "Liquor Tax Law." The first count charges the defendant with having on the 9th day of November, 1901, at the town of Milo, in the county of Yates, illegally and unlawfully offered and exposed for sale fermented and malt liquors in quantities less than five gallons at a time, to be drunk on the premises, to one Samuel Ortley, who was then and there a minor under the age of 18 years; the second count charges the defendant with having sold and delivered to the same party on the 9th day of November, 1901, at the town of Milo, fermented and malt liquors in quantities less than five gallons at a time, to be drunk on the premises; and the third count charges the defendant with having, at the same time and place, illegally and unlawfully given away to one Samuel Ortley fermented and malt liquors in quantities less than five gallons at a time, to be drunk upon the premises. The defendant was convicted under the second count, and from the judgment thereupon entered, as well as from an order denying the defendant's motion for a new trial, this appeal is brought.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WIL LIAMS, and HISCOCK, JJ.

Thomas Carmody, for appellant.

A. Gridley, Dist. Atty., for the People.

ADAMS, P. J. Subdivision 1 of section 30 of the liquor tax law provides that no corporation, association, copartnership, or person, whether taxed under that act or not, shall sell, deliver, or give away, or cause, permit, or procure to be sold, delivered, or given away, any liquors "to any minor under the age of eighteen years, nor to such minor for any other person." And by subdivision 2 of section 34 of the same act a violation of the provisions of section 30 is made a misdemeanor. Manifestly, therefore, two elements are essential to establish the crime charged in the second count of the indictment, viz.: (1) The sale of liquor; and (2) that such sale was to a minor under the age of 18 years.

¶ 1. See Criminal Law, vol. 14, Cent. Dig. § 830; Intoxicating Liquors, vol. 29, Cent. Dig. § 289.

That the defendant did sell liquor to one Samuel Ortley, the party named in the indictment, and in quantities less than five gallons at a time, to be drunk upon the defendant's premises, was sufficiently established upon the trial to sustain the verdict of the jury, although the evidence bearing upon that feature of the case tended to show that such sale took place upon the 16th day of November, 1901, instead of the 9th day of that month, as charged in the indictment.

The evidence, however, as to the age of Ortley was very far from satisfactory. Indeed, it is difficult to resist the conclusion that in order to reach the conclusion they did upon this branch of the case the jury must have indulged in more or less speculation; for the only evidence that Ortley was under the age of 18 years was furnished by himself, and under circumstances which entitled it to little or no credence. Ortley, it seems, is an Indian boy, and had been an inmate of the Indian school at Carlisle, Pa., from which institution he ran away, and came to Penn Yan. Shortly after reaching the latter place he stole $15 from his employer, and when brought before the police justice to answer to that offense stated that he was 18 years of age. Upon his cross-examination in the present action, when asked in regard to such statement, he declared that he believed that was his age, although upon his direct examination he had sworn that he was but 16. As a matter of fact he obviously knew nothing about his age except what some indefinite person at the Indian school had told him, and as a consequence we find him upon one occasion declaring himself to be 16, upon another 18, and upon still another 19 years of age. It seems to us hardly safe to allow a conviction to stand upon such unsatisfactory and contradictory evidence, where, as in this case, the age is of the essence of the offense, even when augmented by the appearance of the witness himself. But, without determining the present appeal upon this question, we think the judgment and order appealed from must be reversed for error in the admission of evidence.

In the course of the trial the district attorney proved by Ortley that he had purchased one or more drinks of liquor at the defendant's bar upon a certain occasion, which was subsequently proven to have been about the 16th day of November, and in this connection Ortley stated that he had been there and purchased liquor upon other occasions. He was then asked, "On what other time did you have it?" to which question the defendant's counsel objected that it called for proof of a separate and distinct offense, whereupon the court stated as follows, viz.:

"If one of those sales comes within the spirit of the indictment, that I suppose will be the limit of the case to go to the jury. He may prove three sales, and if he brings one of those sales within the allegations of the indictment that will be his case."

To this ruling the defendant's counsel duly excepted, and the witness then answered: "I drank on other nights; whisky and beer." After giving this answer, the following proceedings took place :

"Defendant's Counsel: I object to proof of sale of whisky as improper and inadmissible under the indictment. (Overruled. Exception by defendant.) By Witness: It was before this time I have spoken of. I have

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bought liquor there otherwise. Q. How? Defendant's Counsel: I object to the evidence as improper and inadmissible under the indictment. The Court: At any time which you have reason to suppose would bring yourself within the allegations of the indictment? District Attorney: I am asking this to show a sale to him in a bottle. Of course it is not within this indictment, but is an illegal sale, and shows guilty knowledge upon the part of the defendant,-intent to break the law. The Court: I do not believe you are entitled to it for that purpose. Of course, if it comes within the time charged in the indictment, it would certainly be all right. District Attorney: This occurred at that time, whenever the time was; that identical night. The Court: If you affirm that it is only for the purpose of showing what you said, I shall sustain the objection; if you affirm it to be an action which may come within the allegation of your indictment, that is another thing. District Attorney: It is all res gestæ. It is the same thing. One is a sale in a bottle, the other a sale in a glass. The Court: If it comes within your indictment, you can have it. For the present we will take it. (Excep tion by defendant.) A. I bought liquor there in another way,-in a half-pint bottle. Q. Who did you buy it of? Defendant's Counsel: I object to it as improper and incompetent and inadmissible under the indictment. The Court: He may have it for the present. (Exception by defendant.) Q. Who did you ask for it? A. Mr. Andrus,-Peter J. Andrus. I asked for whisky. He gave it to me-whisky-in a bottle; a half-pint bottle. I paid him twenty-five cents for it. I drank it. It was whisky. I paid ten cents for the whisky in the glass at the bar. I paid five cents for the beer. Somebody drank out of the bottle with me."

The record does not disclose on what precise day this bottle of whisky was purchased, nor was the witness able to state just when it was that he purchased and drank beer at the defendant's bar; but he did say that it was on some occasion when he was in the company of a young man by the name of Fred Finger, and another person by the name of Harry, whose surname he was unable to recall, and he also testified that he was at the defendant's place in company with these same persons more than once. These facts, when taken in connection with the admission of the district attorney that the sale of liquor in the bottle did not come within the indictment, but that evidence thereof was offered solely to show guilty knowledge upon the part of the defendant, leaves little or no question but that such sale occurred upon a different occasion from the one which forms the basis of the indictment. Ortley's evidence, as a whole, certainly sustains such a conclusion, and it is by no means in harmony with the statement of the district attorney that it "all occurred at one time."

Section 33 of the liquor tax law provides that:

"Each violation of any of the provisions of this act shall be construed to constitute a separate and complete offense, and for each violation on the same day, or on different days, the person or persons offending shall be liable to the penalties and forfeitures imposed by this act."

Within the express language of this section, we think it must, under the circumstances above detailed, be held that the sale of the whisky in the bottle constituted a separate and distinct offense. This being the case, the evidence objected to was clearly inadmissible (People v. Huffman, 24 App. Div. 233, 48 N. Y. Supp. 482; People v. O'Donnell, 46 Hun, 358); and, inasmuch as it was not withdrawn from the consideration of the jury, it must necessarily have been prejudicial to the defendant. Indeed, it is impossible