39 Conn. 40 | Conn. | 1872
The information in this case charges the accused with keeping “ open a certain house, saloon and building, in which it was then and there reputed that spirituous liquors, ale and lager beer, were exposed for sale” &c., and the proof upon the trial was that the accused kept open a certain park, consisting of four acres of open ground, in which it was reputed that spirituous and intoxicating liquors, ale and lager beer, were exposed for sale. The accused objected to the evidence tending to show that the park had such reputation, but the court admitted it, and the first question presented for our consideration is whether the evidence was properly received. The language of the statute on which the information'is based is as follows: “No person, &c., shall keep open any shop, house, store, saloon or other building, in which it is reputed
In the present case the place kept open and having such reputation is described in the information to be a house, saloon and building. Hence the state must be confined in its proof to a place bearing the description which is here given, for the law will never allow one place to be described in which an offence is alleged to have been committed, and another place proved on the trial; and especially is this true in cases where some place of a particular description is an important element in the alleged crime. This principle applies as much in the present case to the place having such reputation, as it does to the question whether the place was kept open or not. This is evident and requires no elaboration. The question then is, can the park properly be called a house, saloon or building ? Unless it can be so designated, the evidence regarding its reputation should have been excluded by the 'court. "We think it is manifestly clear that an open tract of land, consisting of four acres of ground, whether inclosed by an ordinary fence or not, cannot in any sense be called, a house, saloon or building. These terms apply to erections made by men for use or convenience, as a dwelling house, a store-, a church, a barn, <fcc. It is no answer to say that the platform described in the motion was a building within the meaning of the information, and the statute on which it is based ; for if so, then the evidence of reputation should have been confined to the platform, and the reputation of the park generally should have been excluded. Non constat but that the park had derived its reputation from what had transpired in other parts of the park. Indeed it so appears in the motion, for it is expressly stated that no spirituous or intoxicating liquors, ale or lager beer, had ever before been sold from the platform, but such liquors had been sold in other parts of the park. These considerations induce us to think that the evidence was improperly received.
The principal argument in support of the charge consists in the fact that the act of the accused on the occasion complained of is clearly within the mischief that the statute was intended to remedy, and unless the platform is held to be a building within the meaning of the Act, an easy mode is afforded of evading the law. This argument would apply with equal force to the transaction that had taken place under one .of the trees of the park on a previous Sunday, and would apply with like force to the case in hand if no platform had been there, and the transaction in other respects had been the same. The argument seems to admit the necessity of some erection that may be called a building, in order to bring the case within the statutory provision. The claim is that a building is a thing built, and hence the platform, being built, became a building. This definition would constitute a fence inclosing a tract of land, however large, a building,' and should a transaction like the present one occur within the in- • closure, it would of course occur within the walls of the building, and the party committing the act would be guilty of this offence. This seems absurd. "Webster defines a building to be “a fabric or edifice' constructed for use or convenience, as a house, a church, a shop, &o.” This is the universal meaning of the word, and no one can doubt that the legislature used it in this sense, and especially when he considers the relative words of the statute, “ shop, liouse, store and saloon.” The language is, “no person, <fcc., shall keep open any shop, house, store, saloon or other building;” that is, “other building” ejusdem generis as those named. Regina v. Reed, 28 E. L. & E., 133. We think it is clear that the statute was never intended to reach all sales of spirituous or intoxicating liquors on Sunday, or all cases where such liquors are exposed for sale on that day, but was designed to reach
A new trial is advised.
