| N.Y. App. Div. | Jul 1, 1897
Lead Opinion
The defendant was indicted for a violation of section 31 of chapter 112 of the Laws of 1896, the Liquor Tax Law By that section it is provided that “ It shall not be 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, on Sunday, or before five o’clock A. M. on Monday.” The indictment charged the defendant with having unlawfully sold to one Harvey D. Corey and to certain other persons whose names are unknown, liquor on the 13th day of August, 1896, the same being Sunday.
There was no demurrer to the indictment, nor did the defendant ask the court to advise the jury to acquit; but, after the conviction, the defendant moved for an arrest of judgment on the ground that the facts stated in the indictment did not constitute a crime. It is now claimed that this motion in arrest of judgment should have been granted; as, to constitute a crime, the facts stated in the indictment should have negatived the two exceptions contained in the section of the statute before referred to. The section contains the following provision after the provision before referred to: “ But' the provisions of clauses £ a,’ £ b,’ ‘ c ’ and 1 d ’ of this section are subject to two exceptions, as follows.” The first of these exceptions relates to a pharmacist, who may sell liquor upon the prescription of a physician; and the second to a holder of a liquor tax certificate who is keeper of a hotel, and who may sell liquor to the guests of the hotel with their meals, or in their rooms or apartments, but not in the .barrooms or other similar rooms of the hotel.
Assuming that this objection to the indictment could be raised upon a motion in arrest of judgment, we do not think that the objection is well taken. The statute expressly provides that it shall not be lawful for any corporation, etc., to sell, offer or expose for sale, or give away, any liquor on Sunday, and at various other times and places subsequently specified in the section. These provisions are general. They apply to all persons, whether they have paid a tax or not, and the exceptions relate only to persons engaged in two.particular occupations — a pharmacist and a hotelkeeper.
The rule is stated in the case of Jefferson v. The People (101 N. Y. 21) as follows : “ It is no doubt a general rule that if a statute forbids the doing of any act, without the authority of either one of
The other exceptions taken by the defendant do not require notice. There was no exception to any particular portion of the charge, and the general exception taken by the defendant presents no question for review.
We do not think the charge of the learned trial judge deprived the jury of the exclusive right to judge of and decide the questions of fact, nor do we think that there was any error upon the trial which requires us to reverse the judgment.
The claim of the defendant, that the statute imposes an excessive fine upon conviction, is clearly untenable.-
The judgment appealed from should be affirmed.
Rumsey, Patterson and O’Brien, JJ., concurred; Van Brunt, P. J., dissented.
Dissenting Opinion
I dissent. The charge is in direct conflict with the rule laid down in the case of McKenna v. The People (81 N.Y. 360" court="NY" date_filed="1880-06-08" href="https://app.midpage.ai/document/mckenna-v--the-people-3580496?utm_source=webapp" opinion_id="3580496">81 N. Y. 360).
Judgment affirmed.