People v. Lavin — 4 N.Y. Crim. 547

Majority

p. 547

Supreme Court-General Term-Second Department.

February, 1886.

PEOPLE v. LAVIN.

Headnote

Variance—Excise Law.

•Where the indictment charges a violation of the excise law hy felling, etc., on Hay 18, 1884, and the proof is of a selling on April 20, 1884, the var.ance is fatal.

Appeal from judgment convicting defendant, Edw'ardLavin, 'of a violation oPthe excise law.

Baker & Riley, for appellant.

Nelson H. Baker (district attorney), for the people, respondent.

The defendant was indicted for one offense and convicted of another and different one.

He was indicted for selling spirituous liquors on Sunday, May 18, 1884, and convicted of selling on Sunday, April • 20, 1884.

Time was an important and material ingredient m the offense and therefore the variance between the indictment and the ■"■proof was very material. The defendant could not. prepare to

p. 548

defend himself against a charge of selling spirituous liquors on Sunday, April 20, because that was not the crime intended to be charged.

There are other questions involved in the case which render the conviction very doubtful, but as it must be reversed, we do ■’ • not decide them.

■ The conviction should be reversed.

Pratt, J., concurs; Barnard, J., dissents.