Opinion
May, 1905.
Lewis E. Mosher, for the appellant.
Seaman F. Northrup, for the respondent.
Defendant first challenges the indictment as not sufficiently stating the crime. The rule is unquestioned that under the provisions of sections 275 and 276 of the Code of Criminal Procedure prescribing the form of an indictment it must charge both the crime and the act constituting it. The omission of either is fatal. The crime is here charged as the crime of offering and exposing for sale fermented liquors and distilled and rectified spirits in violation of section 31 of the Liquor Tax Law of the State of New York (Laws of 1896, chap. 112, as amd. by Laws of 1903, chap. 486). This, we think, sufficiently names the crime within the requirements of the Code of Criminal Procedure. The crime has no other name by which it is generally known, and, notwithstanding different acts may constitute a crime under said section, we think the designation is sufficiently specific within the rule requiring the crime to be named as well as the acts constituting the same to be stated.
It is further claimed that no crime is stated in the indictment, because the allegation is of a sale without a license instead of a sale without having paid the tax and having procured the certificate required by law. The allegation in the indictment is certainly not in conformity to the best pleading. The defendant, however, can in no way be misled. If, instead of the charge that the sale was without a license, the charge had been that under the statute the sale was without authority of law, such an indictment would seem to be sufficient. The certificate of payment of the tax required to be given under the present Liquor Tax Law is the evidence of legal authority to sell. Not only is the receipt of the tax acknowledged in such certificate, but the place where the liquor may be sold and the period during which the liquor may be sold is also specified therein. (See §§ 19-21, 31, as amd. by Laws of 1897, chap. 312, and Laws of 1903, chap. 486.) While the certificate issued under the Liquor Tax Law is in many essentials materially different from the license issued under the former law, it is, nevertheless, in the nature of a license, the procurement of which and the posting thereof constituting permission or license to sell. The Liquor Tax Law, so called, is not strictly a tax law. (See People ex rel. Einsfeld v. Murray, 149 N.Y. 367.) The crime is named at the head of the indictment as a violation of section 31 of the Liquor Tax Law, and the offense is charged as a sale without license, "contrary to the form of the statutes in such case made and provided." Every element of the crime appears in the indictment. The informality of the allegation might have been amended at the Trial Term, and we are directed by the law to give judgment upon this appeal without regard to exceptions which do not affect the substantial rights of the parties. (Code Crim. Proc. § 542.) The case of Commonwealth v. Young (15 Gratt. 664) is no authority for the defendant's contention here. Under the statute of Virginia, under which that case was decided, liquor was in some instances sold under a license and in some instances upon payment of a tax. The charge of a sale without a license, therefore, had a significance which such a form of charge cannot have in our State, and it was upon this ground that it was held that a charge in an indictment that a sale was made without a license was not equivalent to the charge that the liquor was sold without having paid the tax therefor.
The indictment is further challenged for duplicity in charging a sale without a license, and also a sale in a town which had voted that no licenses should be granted, The allegations in the indictment, however, are clearly insufficient to charge a sale in violation of that provision of the statute that liquor may not be sold even with a license in a town where, under certain conditions, the electors had voted that no liquor should be sold. To bring the charge within that provision of the statute facts must be alleged to show that that vote was taken after petition was duly presented and due notice given to the electors of the vote to be taken upon such question. Without a statement of these preliminary conditions a mere allegation that liquor was sold in a town in which the electors had voted that no liquor should be sold would be held insufficient, and such allegations may be treated as surplusage in this indictment.
This case was submitted to the jury practically upon one question, "Did this defendant on that 3rd day of November, 1903, sell to Joseph Huey * * * intoxicating drinks?" Huey testified that he purchased a drink of intoxicating liquor of the defendant upon that day. Upon the trial evidence was admitted of sales to other persons upon that day. This evidence was probably incompetent at the time when it was offered, but has been rendered harmless by the evidence of the defendant himself not only to the effect that he sold to Huey, but also to other persons, what he called Dewitt's Stomach Bitters. This was what Huey claimed to have purchased. The only question, then, left was the question as to whether the liquor called Dewitt's Stomach Bitters, which the defendant admitted he had been selling to various persons upon that day, was intoxicating. Upon that question it was competent for Welchman to swear that he had taken three drinks thereof upon that day and was made intoxicated thereby. It was competent to show that Welchman was in an intoxicated condition after having taken those drinks. It was afterwards sworn to by defendant himself that Welchman had also taken liquor from a bottle at another place. Prior to such fact appearing, however, in corroboration of Welchman's testimony that he was made drunk by the liquor which he drank at this place, it would seem to have been competent to show any act which would show that he was intoxicated after having drunk the liquor sold by defendant. If otherwise the error is harmless.
Finally, the defendant claims that under the indictment charging the sale to persons whose names were to the grand jury unknown, it was proper only to show a joint sale and not proper to show a sale to Huey alone. This contention would seem to be answered by the authority of People v. Haren ( 35 Misc. Rep. 593) and of People v. Satchwell ( 61 App. Div. 314).
Other objections are made to this judgment. In our view of the case, however, by the testimony of the defendant himself all questions, except upon the form of the indictment and as to the intoxicating qualities of the liquor called Dewitt's Stomach Bitters, are eliminated from the case. Any errors bearing upon any other branch of the case have been rendered harmless by such evidence and by the course of the trial. The defendant's conviction rests upon abundant proof, and we find no sufficient ground to disturb the same.
Judgment of conviction unanimously affirmed.