4 Park. Cr. 26 | Court Of Oyer And Terminer New York | 1857
There are two counts in this indictment, to each of which a formal or technical objection is taken. The first count charges the sale of liquor by the defendant, to be drank on his premises, “ without having obtained a license therefor as a tavern keeper, or without being in any way authorized to sell the same as aforesaid.” The objection is, that the word “or” vitiates the statement of the offence; that the word 16and” should have been used, so as to make the sentence read: “ without having obtained a license, &c., and without being in any way authorized,” &c. The rule as to the effect of a disjunctive is, that where it introduces uncertainty in the statement of an offence, it will be fatal. For instance, if in an indictment like the present it were alleged 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. But here the #act of selling liquor to be drank on the premises is charged with all necessary certainty, and in the first branch of the sentence which we have quoted, these sales are alleged to have been made by the prisoner “ without having obtained a license therefor according to law.” The pleader might have stopped here; all that follows is surplusage. There is no other way in which a man can be legally authorized to sell intoxicating liquor to be drank upon his premises, than by a license to him as a tavern keeper. The addition of the words, “or without being authorized,” &c., cannot have any effect upon the indictment; they do not alter the statement of the offence, nor can they mislead the defendant, and it would be pushing nicety in pleading to an extreme, to suffer the insertion of such a superfluous allegation to defeat the ends of justice.
If the first count of the indictment be good, that will sustain a judgment although the second count should be held defective. (Kane v. The People, 8 Wend., 210.) It is not there fore actually necessary for us to consider the objection made to the form of the second count. The answer to this objection,
All that remains is the main question, whether the sale of liquor by an unlicensed person is an indictable offence under the act off April 16, 1857. After the most careful examination which I have been able to give to this question since it was argued, I cannot entertain any more doubt upon this than the other points. It may be well to observe, in the first place, that little or no reliance was placed at the argument upon the objection that no indictment could be found until a complaint had been entered with a magistrate, and the party had given bail. I think the counsel for the defendant wisely declined to rest his case upon this defence. It does not strike me with
Section 29th of the act in question is as follows: “ It shall be the duty of courts to instruct grand jurors to inquire into all offences against the provisions of this act, and to present all offenders under this act, and also all persons who may be charged with adulterating imported, or other intoxicating liquors, with pernicious or deleterious drugs or mixtures, which offences are hereby declared to be misdemeanors, to be punished by imprisonment in the penitentiary, work house, or jail, for a period of three months, and by a fine of one hundred dollars.” The first, and I think the principal question is, whether the word “offences,” in the latter clause of this section, extends to and includes all violations of the statute, or only to that particular class of forbidden acts, the mention of which immediately precedes the phrase. I cannot see anyreasonto doubt that the words, “ which offences,” are here used as correlative and with reference to the phrases, “ all offences," which it is made the duty of grand juries to inquire into, and “ all offenders,” who are to be presented, that is, indicted by the grand inquest. Certainly the most natural and obvious reference of the phrase “ which offences,'" is to those acts which are described and included by the words “ all offences ” against the statute. The adulteration of liquors is not an offence against the act at all, unless it is made so by this very clause, which it is contended declares it, and it alone, a misdemeanor, but which certainly would seem to refer to some thing which had been made or declared offences by some preceding part of the act. The clause in question makes certain offences misdemeanors; but it was not intended, I think, to make any acts offences which were not otherwise and already in that category. How, the adulterating liquor is no where else referred to in the law in question. It is neither prohibited in terms nor in effect by inflicting a penalty for doing it. On the other hand, there are other acts which are offences against this statute upon well settled principles of law, without reference to this section to
Upon a rigid construction of this section as I view it, this phrase might rather be restricted to the offences and the offenders mentioned in the first clause of the section. But I cannot agree that such a construction should be put upon so plain and so plainly beneficial a statute as this. I think it more in accordance with the meaning of the legislation and with sound principles of construction, to hold that the effect of this portion of this section is to make both the adulteration of liquor and all other acts which are legally offences against the act, to be misdemeanors. At all events, where the statute speaks of “ all offences,” against its provisions as subjects of examination and indictment, and then using the same term with a relative, proceeds to say, 11 which offences ” are declared misdemeanors, it seems to me unwarrantable to insist that the offences spoken of in the second and relative sentence, are different from such, as are included in the antecedent. The samé word is used in both, and in the latter clause it must include all acts which are legally considered offences against the law.
If then all acts which are offences against the statute, and not merely adulterating liquors, are declared to be misdemeanors by the clause in question, and there can be little doubt such was the design of the Legislature, the only question which remains is, whether the sale of liquor by a person not having a license, is an offence against the act. This precise question was raised and decided under the former excise law, as I read the cases and the statutes. Section 28th of that law (1 R. S., 682), was to this effect: “All offences against the provisions of this title shall be deemed misdemeanors, punishable with fine and imprisonment.” The statute contained no express prohibition of sales without license, but only sections declaring
The demurrer is overruled, and there must be judgment for the People.