State v. Colston

Hibbard, J.

The testimony of Hutchinson must have been admitted, upon the ground, not that evidence of the commission of an offence by the defendant tended to make it moré probable that he committed a similar offence afterwards, as his counsel seem to suppose, but that a *484 state of things once shown to exist is presumed to continue until something is shown to rebut the presumption — Parker, C. J., in Wells v. Burbank, 17 N. H. 409; 1 Greenl. Ev., sec. 41. Though the offence charged in the indictment might be the same keeping for sale to which the witness referred, no wrong could be done to the defendant by the admission of the testimony simply as tending to show that he kept liquor fór sale at a later date,-covered by the information. If there was a change of circumstances at the Sherman House after the indictment was found, the defendant might easily have shown it. It was within the discretion of the judge to determine whether the testimony was so distant in point of time as to require him to exclude it for remoteness.

The instruction to the jury clearly was sufficiently favorable to the defendant. ■ jExceptions overruled.