Opinion
Submitted December 1, 1885
Decided December 15, 1885
M.E. E.M. Bartlett for plaintiff in error.
I. Sam Johnson, district attorney, for defendant in error.
The indictment in question was found in May, 1881, and as the Code of Criminal Procedure had not then taken effect (§ 963), it is to be construed without regard to the provisions of that act. It contains four counts. At the close of the evidence the court ruled that there could be no conviction under the first three counts, but against the exception of the defendant's counsel, submitted the case as one in which the defendant might be found guilty under the fourth count, saying to the jury: "You are only to consider whether or not the defendant, at the time and place mentioned in the indictment, sold strong, spirituous and intoxicating liquors, to be drank on his premises, without having a license therefor as an inn, tavern, or hotel-keeper." There was no exception to this charge, but it followed a denial of a motion by the defendant's counsel to direct a verdict of not guilty upon the indictment generally, and also an unsuccessful motion to quash the fourth count in the indictment, upon the ground, among other things, that it was not necessary to have a license as an inn, tavern, or hotel-keeper, "to sell, to be drank on his premises, all of the liquors mentioned in that count." The motion was denied, and the exception then taken to the ruling of the court is the only error now relied upon.
The indictment was evidently drawn under section 14 of the act entitled "An act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed in 1857, and constituting chapter 628 of the laws of that year. That section prohibits the sale of such liquors by any person "to be drank in his house, or shop, or any out-house, yard, or garden thereof, without having obtained a license therefor as an inn, tavern, or hotel-keeper," and it is obvious that if this were all, the appeal would be without merit, but in 1869, the act of 1857 was amended (Laws of 1869, chap. 856), and among other things, it was declared by section 4 that the provisions of the act of 1857 should be held "to apply to the sale of ale or beer, except so much thereof as forbids the granting a license to any person, except such persons as propose to keep an inn, tavern, or hotel, and the commissioners of excise were authorized, in their discretion, to grant a license for the sale of ale or beer to persons other than those who proposed to keep an inn, tavern, or hotel." By these provisions, the operation of the act of 1857 was restricted ( People v. Smith, 69 N.Y. 175) and a new exception added to that already given by section 14 of that act, so that a person might sell ale or beer, to be drank upon his premises, if he either kept a tavern there, or had been licensed under the act of 1869.
It is not suggested by counsel on either side that the act of 1870 (Chap. 175), regulating the sale of intoxicating liquors, has in any respect contravened the provisions of the acts of 1857 and 1869, to which I have referred. The precise objection raised by the learned counsel for the appellant is that the indictment does not allege in form or substance, that defendant had not permission to sell ale or beer; and as such articles are enumerated among those alleged to have been sold, he contends that the indictment should have negatived the exception made by the act of 1869 ( supra).
It is no doubt a general rule that if a statute forbids the doing of any act, without the authority of either one of two things, the indictment must negative the existence of both before it can be supported, and it is well settled that if exceptions are stated in the enacting clause, it would be necessary to negative them in order that the description of the crime may correspond with the statute, but if there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the defendant.
It has, therefore, been held that, where the statute imposes a penalty on the selling of spirituous liquors without a license, it is necessary to aver the want of a license in the indictment. But in Fleming v. People ( 27 N.Y. 329), it was said to be unnecessary in an indictment for bigamy to negative certain exceptions, although they were referred to in a section defining the offense, and that, as matter of pleading as well as proof, it was for the defendant to bring himself within the exceptions; and as illustrating that rule, the court referred to the case of a physician practising without a license, and the selling spirituous liquors without a license, saying, the prosecution need not prove the want of qualification. It was also held that the omission of such allegations was within the meaning of the Revised Statutes, which declare that no indictment shall be deemed invalid by reason of any defect or imperfection in matters of form, other than those which are enumerated, which shall not tend to the prejudice of the defendant.
In either view, therefore, the case was well disposed of. The act of 1869 extended the authority of the commissioners to grant a license for the sale of ale or beer, and affected many of the provisions of the act of 1857. But the indictment contains the language of section fourteen of that act, and stated an offense. We think that was enough.
The defendant was at liberty to show either that he had a license to sell strong or spirituous liquors, as provided in the fourteenth section of the act of 1857, or a license for the selling of ale or beer under the act of 1869. He did neither. The record shows that the evidence on the part of the people tended to prove that the defendant sold strong and intoxicating liquors in quantities less than five gallons, to be drank on his premises, and that the same were so drank on his premises, and rested. The character of the liquor does not appear, but the defendant then proved by the admission of the district attorney that he had a license covering the periods alleged in the indictment, and mentioned in the evidence, "for the sale of strong and spirituous liquors in quantities less than five gallons, not to be drank on the premises." No other evidence was given by him, and it is clear that he neither negatived the exception in section 14 of the act of 1857, nor brought himself within the proviso or condition of section 4, of the act of 1869. Under the circumstances, the court committed no error, and the judgment rendered upon the conviction was properly affirmed by the General Term.
The judgment appealed from should, therefore, be affirmed.
All concur.
Judgment affirmed.