Opinion
May Term, 1901.
Victor E. Whitlock, for the appellant.
William Van Wyck, Assistant District Attorney, for the respondent.
The defendant appeals from a judgment of the Court of Special Sessions of the second division of the city of New York, that convicts him of a violation of the Liquor Tax Law under the charge of selling liquor on Sunday. The defense did not offer any evidence. Section 31 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312) makes it unlawful for "any corporation, association, copartnership or person * * * to sell, offer or expose for sale, or give away liquors * * * a. On Sunday, or before five o'clock in the morning on Monday." If the People proved beyond a reasonable doubt that the defendant offered and exposed liquor for sale on Sunday, it was sufficient proof of a violation of the section quoted. They were not compelled to go further to prove that the defendant was not within the protection of the exception to the provisions of clause "a," which is contained in a subsequent part of the section, but it was for the defendant to offer evidence that he was within such exception. ( Matter of Lyman, 28 App. Div. 127; People v. Crotty, 22 id. 77, and authorities cited; Bish. Stat. Cr. [3d ed.] § 1051.) The testimony of the witnesses for the People is that on Sunday, November 18, 1900, they went into a saloon, stood before a bar and ordered a drink, or whisky, from the defendant who was behind the bar, whereupon the defendant put down a bottle and glasses upon the bar; that they then poured liquor out of that bottle into those glasses, and that they then drank the liquor, which was whisky. This testimony, if believed, made out a case for the People. It is contended that the information laid charged that the defendant did "offer and expose for sale," and that the evidence is insufficient to establish that charge. The witnesses for the People were policemen, who at the time wore citizens' dress. They first went through a hall door, thence into a rear room, and there gained access to the barroom. They found the defendant behind the bar, clad in part in a cardigan jacket and a white apron. They did not know him, nor did he know them. They ordered and drank, but did not pay. This was plainly an offer and exposure for sale. None would be so credulous as to credit that, under the circumstances, the defendant intended to make a donation to strangers simply upon their call for drink.
The judgment must be affirmed.
All concurred.
Judgment of the Court of Special Sessions affirmed.