3 N.Y.S. 508 | N.Y. Sup. Ct. | 1889
Information was first filed before a justice of the peace, who •entered upon an examination of the persons designated in the information. Pending such examination, and before a warrant was issued, the attorneys for "the complaint notified the justice that they had concluded to proceed no further before him, but had decided to take the matter before the grand jury of the county. The justice thereupon did nothing further in the case, but sent .the papers to the district attorney. Subsequently the defendant was indicted by the grand jury of the county, and, upon the trial of the indictment, and .after the evidence was closed, the defendant asked the court to instruct the jury to acquit the defendant, or that his discharge be ordered, on the ground that it appears from the evidence that neither the grand jury that found the indictment nor the trial court had or has any jurisdiction of the subject-matter; the complaint having been previously made to a court of the special sessions of the county for the same offense charged in the indictment. The court •denied the requests, and exception was taken by the defendant.
The provision upon which this motion was based isas follows: “Subject to the power of removal provided for in this chapter, courts of special sessions, except in the city and county of Hew York and the city of Albany, have in the first instance exclusive jurisdiction to hear and determine charges ■of misdemeanors committed within their respective counties, as follows: * * * when a complaint is made to, or a warrant is issued by, a committing magistrate, for a violation of the laws relating to excise, and the regulation of taverns, inns, and hotels, or for unlawfully selling or giving to any Indian spirituous liquors or intoxicating drinks.” Code Grim. Proc. § 56, subd. 32. The provision is so clear and explicit as to require no interpretation. When .a complaint is made to a committing magistrate for á violation of the law relating to excise, the magistrate, subject to the power of removal provided for,
It is contended on the part of the district attorney that the club was a fraudulent concern, organized for the purpose of evading the excise law. The evidence tends to show that the defendant had previously been a saloon keeper, occupying the same premises; that he was refused a license, and thereupon this club was organized, and a portion of the premises in which the bar was located was leased to the club; that the defendant became the treasurer and steward of the club; that he has made all the purchases of liquors in the name of the club, and sold them to members, to be drank upon the premises, receiving the pay therefor as such steward. Members on joining the club were required to pay 50 cents, which was returned to them upon their withdrawal. The club was not incorporated. A constitution and by-laws were prepared and introduced in evidence, for the purpose of showing the organization of the club. While, as we have stated, the statute authorizes the formation of o clubs for legitimate purposes, it does not authorize the formation of a club for the purposes of evading the laws of the state; and if, as is claimed, this club was organized for such a purpose,—if it is merely a scheme and a device to continue the sale of strong and spirituous liquors without a license, thereby evading the laws relating to excise,—it operates as no defense or shield to those engaged in the traffic; and it is the duty of the court and jurors to disregard the scheme or device, and faithfully execute the law according to its true spirit and intent. The difficulty with this case is that the trial court did