Hodgman v. People

4 Denio 235 | N.Y. Sup. Ct. | 1847

Per Curiam.

The first objection is unanswerable. Only one offence can be proved under each count. The court, therefore, committed an error to the prejudice of the defendant when they permitted the additional evidence to be given. For this reason alone the judgment must be reversed. But we are requested to express an opinion upon the question raised respecting the last count. That count contains all the facts necessary to be averred in a count under the revised statutes. It is true that certain matters are introduced showing that the pleader had in view the act of 1845, but these may be disregarded. We think it is unobjectionable as a count under the revised statutes. But we are of opinion that an indictment will lie under the act of 1845. The fifth section of that act provides that selling liquor, &c. by retail, in any town in which the electors have determined that no licence shall be granted, shall render the offender “ liable to all the penalties imposed by title 9, of part first, chapter twenty, of the revised statutes.” It is argued that this language refers only to the pecuniary penalty imposed by the revised statutes. But we are of opinion that the word “ penalties,” in the provision referred to; is to be understood in a more general sense, and that it embraces the liability to punishment by indictment provided in the title of the revised statutes referred to in the act of 1845. The word is in the plural form, and means something more than the single penalty for selling by retail without a licence.

Judgment reversed.