94 N.Y.S. 526 | N.Y. App. Div. | 1905
Lead Opinion
The defendant was indicted for the crime of “•unlawfully selling distilled and rectified spirits, wine, fermented and malt liquors, in quantities less than five wine gallons at a time, in a town where the sale of liquors is prohibited, and without having obtained and -posted a liquor tax certificate, and without having paid a tax therefor, -contrary to the.provisions of the Liquor Tax Law committed as follows :
“ The said Henry Cox, on the 31st day of August, 1904, at the town of Potsdam, in this County, unlawfully did sell to .one Owen O.-. Wiard, distilled :a-ud rectified spirits, wine, fermented and’malt liquors in- quantities less than five wine gallons at a time, to wit, two glasses of lager beer, without having obtained and posted a liquor tax certificate, and without having paid a tax therefor, the said town of 'Potsdam then; and there being a town in which -a -liquor tax certificate is prohibited as a result of .a vote duly had in said "town upon questions one, two and four, submitted under section 16 of the Liquor Tax Law,* contrary to the provisions of the Liquor Tax Law.”
He'was tried upon such 'indictment and the jury on evidence uncontradicted by the defendant, rendered a special verdict as follows : “ The jury find that on the 31st day of August, 1964, the defendant, at the town of Potsdam, in this County, did sell and deliver to one Owen 0. Wiard, one .pint -of a .certain liquor called ‘ Maltrose; •’• that said liquor then and there contained between seventy-four hundredths of one per cétit and one and eighteen hundredths per cent in volume of alcohol; that said alcohol was formed therein by. fermentation or added in the process of manufacture;
The county judge holding said term of court on the application for judgment upon the special verdict, wrote an opinion in which, among other things, he said : “ Philput, the manufacturer of the beverage sold by defendant under the name of malt rose testified that one of the ingredients was the lager beer known as ‘ export lager.’ Mr. Williams, the chemist, called by defendant, testified that on the assumption that the. export beer used by Philput was an average sample of American export beer, the mixture resulting from the ingredients enumerated by Philput would contain eleven-hundredths of one per cent in volume of alcohol. But the analyses of five samples of malt rose by Mr. Williams showed from seventy-four-hundredths of one per cent to one and eighteen-hundredths per cent in volume of alcohol. The excess, amounting from seven to ten times the original quantity, can be accounted for only upon the theory of fermentation,, or the intentional addition of alcohol in some form. The resultant was, therefore, to some degree at least, fermented liquor or distilled spirits.
“ The sole remaining question is the practical one, whether the quantity of alcohol is so small that the law ought to ignore it.
“ It was in evidence, and is undisputed in this case, that Schlitz Milwaukee lager beer contains only two and forty-five hundredths per cent of alcohol. Clearly a lager beer containing this amount of alcohol cannot be lawfully dealt in in a no-license town. If the contents of a bottle of this beer were to be diluted by two parts of water to one of beer, I have no doubt the resulting beverage would still be within the prohibition of the law, and yet it would •contain a less percentage of alcohol than some of the samples of malt rose submitted to Mr. Williams, On the trial of this action Philput, the manufacturer, was unable to determine by inspection whether a bottle shown him was malt rose, manufactured by him, or lager beer. If the product is manufactured as a substitute for lager beer and sold either for the purpose of deceiving the purchaser or •evading the law, the charity of the law should not be exercised toward it. In practically all of the trials in this court involving alleged violations of the Liquor Tax Law in the town of Potsdam ■since the last biennial town meeting, the last line of defense has
During the trial, and in his charge to the jury, the county judge held, and said in substance, that the .question for determination was whether the defendant had trafficked in distilled and rectified spirits, wine, fermented and malt liquors, and that it was immaterial whether such liquors were intoxicating.
• The excise acts passed by the Colonial Legislature relating to the sale of liquor in every instance referred, either in the title of the act or in the act itself,. to “ strong liquor ” or “ spirituous liquor,” or words of like meaning, and the first act of the Legislature of this State relating to excise (Laws of 1779, chap. 17) is entitled “ An act to lay a duty of excise on strong liquors, to appropriate the monies arising therefrom, and for the better regulation of inns and taverns within this State.”
The title of chapter 164 of the Laws of 1801 is “ An act to lay a duty on strong liquors and for regulating inns and taverns.”
The title of chapter 628 of the Laws of 1857 is “An act to suppress intemperance and to regulate the-- sale of intoxicating liquors.” •
The title of chapter 175 of the Laws of 1870 is “ an act regulating the sale of intoxicating liquors.”
The title of chapter 646 of the Laws of 1873'is “ An-act to sup-' press intemperance, pauperism and crime.”
The title of chapter 340 of the Laws of 1883 is “An act to regulate tile sale of intoxicating liquors in cities having a population of over three hundred thousand inhabitants.”
The. title of chapter 401 of the Laws of 1892 is An act to revise and consolidate the laws regulating the sale of intoxicating ■ liquors.”
The Liquor. Tax Law (Laws of 1896, chap. 112) is entitled “An act in relation to the traffic in liquors, and for the taxation and regulation of the same, and to provide for local option, constituting
. The. defendant also- claims that his trial and conviction was. without legal sanction for the reason that the October- term of the County Court of St. Lawrence county was appointed to be held on October seventeenth-, and that on that day neither the county judge of St. Lawrence county nor the special county judge of said county was'present, but the county judge of an-adjoining county opened and held said court until October twenty-first, on which day the county judge of St. Lawrence county held said court and continued to hold said court until after the trial of the defendant which- took place- on
It appears that the county judge of Lewis county held the County Court in St. Lawrence county on October seventeenth at the request of the county judge of St. Lawrence county, and that he continued to hold said court at said request until October twenty-first. Whether, when there is a special county judge in a county capable of acting as a county judge, a county judge of a county other than that in which the court is held can at the request of the county judge of said county preside at the trial of a criminal, action is not necessary for consideration.
The County Court is one court with civil and criminal jurisdiction, and such court was duly adjourned to October twenty-first. On and after that day, including the time when the defendant was tried and convicted, the court was actually in existence and held by the county judge of said county. The defendant’s objection to the jurisdiction of the court is without merit.
The judgment of conviction should be affirmed.
All concurred, except Houghton, J.,. dissenting in opinion.
See Laws of 1896, chap. 112, '§ 16, as amd. by Laws of -1901", chap. 640.—[Rep.
Dissenting Opinion
The defendant was indicted for selling lager beer. On the trial it transpired that he sold what is known as “malt rose.” The
It is true that the Liquor Tax Law defines the “ liquors,” the sale of which is prohibited without a liquor tax certificate to mean and include “ all distilled or rectified spirits, wine, fermented and malt liquoi's” and does not specifically say that they must be intoxicating
Under the former excise laws it ■ is not questioned .that a liquor
Tiie Legislature possesses the right to control and regulate the traffic in intoxicating liquors because of its sovereign police power which it may exercise to preserve the public morals or to promote the. public safety or prosperity. (Metropolitan Board of Excise v. Barrie, 34 N. Y. 666.) It also has the right to pass health laws and to prohibit the sale of food or beverages deleterious to the public health, but it does not and could not prohibit'the sale of pure food or harmless beverages which in no way affect the public morals or public safety or public health.
If the Liquor Tax Law is to be given the narrow construction that the sale of all “ fermented ” or “ malt liquors,” whether intoxicating or not, is prohibited, the invalid food known as kumiss, “ a fermented, dietetic and sanitary drink made * * * from cows’ milk with sugar and yeast, .'and allowed to ferment until it becomes effervescent and slightly alcoholic” (Cent. Diet.), cannot be sold without procuring a liquor tax certificate. Very many other harmless, medicinal and refreshing drinks would also come under the ban. The act should receive no such interpretation.
Although the question was not presented precisely as it now is in People v. Kastner (101 App. Div. 265), decided by this court, it seems to me -the spirit of that decision is violated by the prevailing holding herein. There was no pertinency in reversing the judgment of conviction in that case unless the intoxicating properties of. the beverage there sold (which was “ malt rose ”) was an element of the crime of selling liquor without a liquor tax certificate.
It is very possible that the defendant violated the act, and that “malt rose ” is another name for lager .beer and a mere subterfuge to evade the law; but the pry should have been permitted to pass upon the question whether or not it was a subterfuge, and was lager beer, or was intoxicating.
The judgment of conviction should be reversed and a new trial granted.
Judgment of conviction affirmed.
See Laws of 1896, chap. 112, §§ 2, 31, as amd. by Laws of 1903, chap. 486.— [Rep.
See Laws of 1873, chap. 646; Liquor Tax Law, § 39.— [Rep.