People v. Sinell — 131 N.Y. 571

Majority

p. 571

The People of the State of New York, Respondent, v. William F. Sinell, Appellant.

(Argued January 21, 1892;

decided February 9, 1892.)

Headnote

Under the statute prohibiting the selling of liquor without a license (Chap. 628, Laws of 1857), each sale constitutes a separate offense, and the acquittal of the defendant on a charge of selling, on and after a certain, date, is no bar to an indictment and conviction for a sale made prior to-the transactions to which the record of acquittal relates.

Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order-

p. 572

made at the September term, 1890, which affirmed a judgment convicting the defendant of selling strong and spirituous liquors without a license, entered upon a verdict of the Court of Sessions of Rockland county.

The following is the opinion in full :

“ The indictment laid the selling of the liquor on the 1st of February, 1889, with a continuando charging sales on divers other days between that date and the 1st of May, 1889.

“ The proof related to sales within the period mentioned. The plea of former acquittal was sought to be sustained by a record of acquittal of the defendant on an information before a justice of the peace, charging him with illegally selling liquor after the 1st day of May, 1889, which information was lodged the same day as that on which the indictment was found. The record of acquittal shows that the evidence on the trial before the justice was confined to alleged sales made after May 1, 1889. The offense for which the defendant was indicted'and tried was not the same offense of which the defendant was acquitted before the justice. If the indictment had been sought to be maintained by proof of sales made after the first day of May, and before the information was filed, a different question would be presented. But as this was not attempted, and each sale constitutes a separate offense, the acquittal of the defendant of a charge of selling after a certain date is no bar to an indictment for a sale made prior to the transaction to which the record of acquittal related. This constituted a different and independent transaction. (People v. Adams, 17 Wend. 475 .)

“No other point being raised, the. judgment should be affirmed.”

Arthur S. Tompkins for appellant.

William McCauley, Jr., for respondent,

reads for affirmance.

All concur.

Judgment affirmed.

Cases cited

People v. Adams 17 Wend. 475 N.Y. Sup. Ct. p. 572