People v. Maxwell — 9 N.Y. Crim. 458

Majority

p. 458

Supreme Court—General Term—Second Department

December 10, 1894.

PEOPLE v. FREDERICK MAXWELL (Three cases).

(64 St. Rep. 154; 83 Hun, 157.)

Headnote

1. Constitutional law—Ex post pacto—Excise.

Section 45 of chap. 401 of 1893 is not ex post facto.

S. Evidence—Burden—Excise—License.

The prosecution is not obliged to show, upon a trial for selling liquor without a license, that the defendant had no license.

Appeal from judgments of conviction for violating the excise law.

Wm. C. Cox, for appellant.

W. H. Jaycox, for people.

These are appeals from judgment's of the court of sessions of Suffolk county upon convictions of the defendant on three separate indictments for violating the excise laws. The offenses are alleged to have been committed in the year 1890, and the indictments were found in 1891. The trials were had in 1894. The principal point urged by the defendant on this appeal is that the repeal of the statute of 1857 by the enactment of the excise law of 1892 (chapter 401) rendered the further prosecution of the indictments against him impossible, the saving clause of that act as to past offenses to the contrary notwithstanding. We have no doubt as to the constitutionality and efficacy of the saving clause. It is in no sense an ex post facto law. The defendant is not punished under the saving clause of the act of 1892, but under the law as it existed at the time he committed the offense, the only effect of the saving clause being to limit the scope and operation of the repealing provisions of the statute. The principle that the repeal of a statute creating a crime or prescribing its punishment prevents prosecution for offenses committed while the law was in force is merely a rule of statutory construction. There is no question

p. 459

of natural right or principle of personal liberty involved. The legislature has power to pass a statute as to criminal offenses applicable alone to the future, and such statute will not repeal the prior law on .the subject, nor give immunity to past offenders. Mongeon v. People, 55 N. Y. 613 . The result sought to be obtained being entirely within the power of the legislature, we cannot see why the legislature is not equally the master of the means to be employed, and why it may not do the thing by a saving clause as well as by a statute applicable to future offenses. On the trial of the indictment for selling liquor without a license, objection was made that the prosecution had given no proof that the defendant had not a license. The objection is untenable, as such proof was not required to be given to make out the people’s case. Jf the defendant had a license it was incumbent upon him to show it. Schwab v. People, 4 Hun, 520 ; 1 Greenl. Ev. § 79,

The judgment appealed from should be affirmed.

All concur.

Cases cited

Mongeon v. People 55 N. Y. 613 N.Y. 1874-02-03 p. 459