People v. Schmidt — 19 Misc. 458

Majority

p. 458

The People v. Alexander Schmidt and Eva Schmidt.

(County Court, Oneida County,

February, 1897.)

Headnote

Indictment — Violation of Excise Law.

An indictment, which charges that on a specified day two persons named “ willfully and maliciously, wrongfully and unlawfully did sell and cause to be sold distilled, etc., liquors, ale, beer and wine in' quantities less than five gallons at a time by retail and to be drank on the premises, to Y., Z. and to divers other persons whose; names are to the grand jury unknown ” without having paid excise, taxes and without having a'liquor tax certificate therefor, and not being authorized thereto by law, charges a joint sale , to the persons, named and the persons unknown by the defendants jointly, and is not demurrable as joining two crimes¡

■ Demurrer to indictment.

The above-named, defendants are indicted for. yiolating the ■ Liquor Tax Law. The indictment charges, that on. the 29th day of July, 1896, at the city of TJtica, H. Y., the said Alexander Schmidt and Eva Schmidt willfully and maliciously, wrongfully and unlawfully did sell and. cause to be sold distilled,, rectified, spirituous, fermented and malt liquors, ale, beer, and wine in quantities less than five gallons at a time by retail and to be drank on the premises, to William Yates, Hannah Calaban, and to divers other persons whose names are to the grand jury unknown, and-then and there,did deliver and cause to be delivered in pursuance of such sale to the said William Yates, Hannah Gafaban and to said divers other persons, etq,, said liquors, wines, ale and beer, to-w.it, one gill of wine, one gill of, brandy, one gill of rum, one gill of gin, one gill of whisky, one gill-of cordial, one gill of bitters, one gill of ale, one gill of pofterj one gill of beer, one gill of lager beer and one gill of a certain strong spirituous and fermented liquor to the grand jury aforesaid unknown,, without having paid excise taxes upon the business of trafficking in liquors and without ' having a'liquor tax certificate therefor and not being- authorized thereto by law. ■ '

The defendants demurred to said indictment upon the ground

p. 459

that the indictment charges one crime against defendant Alexander Schmidt and a separate and distinct crime against Eva Schmidt, and that the crimes being distinct and separate cannot be united in one indictment.

Also upon the further ground that more than one crime is charged in the indictment.

George S. Klock, district attorney, for People.

James Coupe, for defendants.

Section 3,3 of the Liquor Tax Law provides that any clerk, agent, employee or servant shall be equally liable as principals for any violation of the provisions of that act.

Defendants contend that one of these defendants was acting as clerk or agent for the other, or else defendants must have been copartners, and that any sale made by one was a distinct and separate crime by that one and that the person so offending must be proceeded against separately. That doubtless would be true providing defendants’ premises were correct, but this indictment alleges that defendants jointly committed the offense.

In disposing of the demurrer we must assume that allegation' to-be true. If defendants jointly committed the offense as alleged they are properly joined in the indictment.

The remaining ground of demurrer is, as defendants contend, that the indictment alleges more than one sale and delivery, to-wit: One to "William Tates, one to Hannah Calaban and one or more to the other p'ersons who are unknown.

If the indictment alleged separate sales to the persons, named the defendants’ objection would be good, but the fact is that the indictment charges a joint sale to the persons named and the persons unknown.

That this objection is not good as to an indictment in the form of the one at bar has been settled in this state for many years. In People v. Adams, 17 Wend. 475 , the indictment charged that the defendant, on June 1st, 1886, and on divers other days and times, sold by retail to divers citizens of this state and to divers persons to the jurors unknown, etc. It was held that only one sale was alleged and that consequently the objection that more than one crime was alleged was not well taken. Chief Justic'e Helson, in his opinion, says: “Upon our view of the time when

p. 460

the offense is laid in the indictment, that is upon the day given, but one sale by retail is to be deemed charged in the count, the three- gills" of brandy, three ‘gills of rum, ■ etc., are to- be viewed as haying been sold at one and the same time, and as constituting ■ but one transaction.. It is a description of various sorts of liquors, with, a view to avoid the difficulty óf a possible misdescription of the article sold.”

That case was followed and the same rule reasserted in Osgood v. People, 39 N. Y. 449 .

The demurrer is overruled.

Ordered accordingly:

Cases cited

People v. Adams 17 Wend. 475 N.Y. Sup. Ct. p. 459
Osgood v. People 39 N. Y. 449 N.Y. p. 460