People ex rel. Schuler v. Schatz

64 N.Y.S. 127 | N.Y. App. Div. | 1900

Woodwaed, J.:

In view of the provisions of section 35 of the Liquor Tax Law (Laws of 1896, chap. 112), as amended by section 25 of chapter 312 of the Laws of 1897, the contention of the appellants that a committing magistrate has no jurisdiction to issue a warrant upon the information of a police officer, charging a violation of the Liquor Tax Law, without the intervention of the district attorney, and without the information of such alleged violation having first been presented to the district attorney, is entirely untenable. The rule of law that where a statute prescribes a particular mode of prosecution, no other mode can lawfully be pursued, has no relation to the facts in this case, the provisions of section 37 of the Liquor Tax Law relating wholly to the duties of special agents, sheriffs, peace officers, etc., and in nowise limiting the jurisdiction of the courts. It would be a strange construction of the law creating misdemeanors in connection with the trafficking in liquors, to say that any citizen possessed of knowledge of violations of the law could not make an information before a magistrate and cause the arrest of such offenders without the information being first laid before the district attorney, especially when it is provided in section 35 that “ a magistrate shall issue a warrant of arrest upon information and depositions and examine the case as now provided by law, but if it shall appear upon such examination that a crime, not triable by a court of special sessions has been committed, and that there is sufficient cause'to believe that, the person or persons charged with such crime is guilty thereof,, such magistrate shall admit such person or persons to bail, in a sum not less than one thousand dollars, and in default of bail shall commit him or them to the sheriff of the county,” etc. The fact that the person making the information now before us was a policeman does not change the rule governing the jurisdiction of the court or committing magistrate; the magistrate is directed to “issue a warrant upon information and depositions,” and the question of his official position does not enter into the transaction. This makes it apparent that in the case of Callen the order appealed from should be affirmed.

The suggestion, however, that there is that degree of uncertainty in the information against Schuler which vitiates the warrant of arrest is, we think, well founded. By the provisions' of section 31 of the Liquor Tax Law it is not “ lawful for any corporation, association, copartnership or person, whether having paid such tax or not, to sell, offer or expose for sale, or give away, any liquor: a. On Sunday; or before five o’clock in the morning on Monday.” The information charges that “ Charles Schuler did sell or give away certain strong and spirituous liquors, to wit, ale and lager beer at his saloon on the northeast corner of Franklin avenue and Third street in the city of Mount Vernon, 27. Y. That said 7th day of January, 1900, being Sunday.” We think that this information being in the alternative fails to inform Schuler of the specific offense with which he is charged ; in fact, it charges no offense. (See People v. Gilkinson, 4 Park. Cr. Rep. 26.) In the case cited Mr. Justice Emott said that if it were alleged in an indictment that “ the defendant sold rum, or gin, or brandy, that would leave it entirely uncertain what precise offence he had committed, or in what particular he had violated the law.”

For this reason the order appealed from in the Schuler case-should be reversed.

All concurred.

People ex rel. Schuler v. Schatz, order reversed. People ex rel. Callen v. Schatz, order affirmed.