People v. Henschel — 35 N.Y. St. Rep. 275

Majority

p. 275

The People, Resp’ts, v. Samuel Henschel, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

1. Excise—Complaint—Warrant.

A complaint stating that defendant had no license, and, upon information and belief, that he sold intoxicating drink in quantities less than five gallons at an auction, and especially to certain persons named, supported by testimony of witnesses that defendant sold them lager beer, which was intoxicating, is sufficient to sustain a warrant for such offense.

2. Same.

Proof of sales of lager beer to different persons, and that lager is intoxicating, is sufficient to make a case for the jury. The qualification that one must drink enough of it to cause intoxication, is for the jury to pass upon.

3. Same—Evidence.

The complaint in this case is general, and. evidence of witnesses other than those who testified to support the complaint is admissible on the trial.

Appeal from judgment of court of sessions, affirming conviction for a violation of the excise law in selling liquor without a license.

Defendant was arrested upon a warrant issued upon an information charging the offense, as follows :

“ William E. Mulford, being duly sworn, says that on the 10th a i Tv days April, 1890, he acted as clerk at the auction sale of the goods and chattels of Obadiah E. Kevins, deceased, at the late Kevins residence, in the town of Smithtown, Suffolk county, K. Y. That Samuel Henschel came on the Kevins premises with a wagon which had bottles filled with some material. That said Henschel has no license to sell strong and spirituous

p. 276

liquors, ale, wine and beer in quantities less than .five gallons. That deponent is informed and believes that said Henschel did at said place, on said days, sell large quantities of lager beer or intoxicating liquors in quantities less than five gallons, and especially that he sold such beer in quantities less than five gallons, at said place, to one Dennis Sullivan and Michael Degan,' Gideon Mapes and A. M. Brewster.”

The information was supported by the affidavits of the persons named therein that defendant sold them, lager beer.

On the trial other witnesses were allowed to testify to sales of lager beer made to them.

Charles R. Street, for app’lt; Wilmot M. Smith, dis’t att’y, for resp’ts.

The complaint was sufficient to give the justice jurisdiction. It was stated therein that the defendant had no license to sell either strong liquor or beer, and that he was engaged in selling, at an auction of one Nevins in Smithtown, intoxicating drink in quantities less than five gallons. The complaint as to the sale was on information and belief. Before the warrant was issued several witnesses made oath in support of the complaint that the defendant sold them lager beer which was intoxicating. That on one occasion he sold the stuff as ginger ale. The purchaser was compelled to testify that it was lager beer. The complaint and affidavits are, therefore, abundant to sustain the warrant of arrest for the misdemeanor charged. The evidence on the trial was sufficient to make a case for the jury to pass upon. Sales of lager beer were proven to have been made to different persons, and that lager was intoxicating. The qualification that one must drink enough of it to cause intoxication was for the jury. The complaint charges a sale without license of strong liquor and ale. No specification is made of the persons to whom the drink was sold. The testimony of the witnesses in support of the complaint did not restrict the complaint to sales to those persons. The complaint was general still, and the evidence of witnesses other than those who were subpoenaed to support the complaint was admissible. The offenses proven were all shown to be at the Nevins auction, and during the time the auction continued. The sentence conforms to the law; the justice could either fine or imprison, or he could do both, only the fine must be limited to fifty dollars or less, and the imprisonment to not exceeding six months. Code Grim. Pro., § 717.

The record, therefore, shows no errror, and the conviction must be affirmed.

Dykman and Pratt, JJ., concur.