McLaughlin, J.:
The defendant was convicted of a misdemeanor and he appeals from the judgment of conviction and orders denying motions to set aside the verdict and for á new trial and in arrest of judgment,
[614]*614The indictment under which the conviction, was obtained charged him with having violated sections 364, 438 and 438a of the Penal Code, in that on the 18th day of March, 1902, he knowingly and fraudulently exposed for sale and.sold as Poland spring water,'in bottles bearing the Poland-water labels and trade marks, water which Avas not Poland spring water.
The judgment of conviction is attacked principally upon two grounds, which will be considered in the order named, (1) that the learned recorder erred at the trial in admitting, against defendant’s' objection, certain testimony; and (2) .that the indictment was not found within two years after the alleged crime was committed.
First. At the trial the People called, as a Avitness. one Rosston, who, after, stating that he was employed by the defendant from the middle of November, 1899/ until March, 1901, during which period he sold mineral Avaters, was asked to state whether he sold to customers water from Poland water bottles, bearing Poland water labels, Avhicli Avas not Poland water. The question was objected to by. defendant’s counsel, and the objection sustained. After the People had rested, defendant Avas called as a Avitness in his own behalf, and on direct examination he testified that he did not.have any clerk Avhom he- directed to sell “ any water than Poland .Water out of Poland Water bottles.” On cross-examinatiqn, referring to the testimony he had thus given, he stated : “Mr. Osborne asked medid I ever instruct any clerk to sell Hygeia Water as Poland Water and I ansAvered ‘ No.’ That is correct.” He was then interrogated as to directions given to the Avitness Rosston and denied that he had directed him to refill Poland water bottles Avi'th other Avater .and sell it as Poland Avater, or that he knew .that any such practice prevailed iii the establishment of which he had charge. After the defendant had rested, Rosston Avas recalled and permitted, against defendant’s objection, 'to contradict liis statement, testifying that defendant had instructed him. to refill-Poland bottles with other water and to sell the same as .Poland AVatei, and that he knew of other instances in. which he had given such instructions. . '
I think thip testimony was admissible. The defendant had denied giving Rosston or any of his employees instructions to refill the Poland water bottles Avith other Avater and sell the same as Poland Ayater. If Ayas admissible for the purpose of contradicting defend[615]*615ant’s testimony. (Blossom v. Barrett, 37 N. Y. 434; People v. Schuyler, 106 id. 298; People v. Barone, 161 id. 451; Squier v. Hanover Fire Ins. Co., 162. id. 552.) It was not only admissible for this purpose, but I think it was admissible as bearing upon the defendant’s intent and rebutting any claiin of -mistake or accident as to the sale specified in the indictment. (People v. Everhardt, 104 N. Y. 591; People v. Molineux, 168 id. 264; People v. Doty, 175 id. 164; People v. Dolan, 186 id. 4.)
This brings us to the consideration of the main question argued on the appeal, viz., that the indictment was not found within two years after the commission of the crime for'which defendant has been convicted. The Code of Criminal Procedure provides that"an indictment for a misdemeanor must be found within two years after its commission (§ 142), and that an indictment is found when duly presented by the grand jury in open court and there received and filed. (§ 144.) The misdemeanor for which the defendant ivas indicted and convicted was committed on the 18th of March, 1902. The indictment was not filed until May 25,1904, more than two years thereafter. Thé defendant’s objection, therefore,.to the validity of the judgment of conviction is good if he. is in a position to raise the question. At the opening of the argument of the appeal before us the learned district attorney asked permission to file'with and have considered as a part of the record on the appeal certified copies of certain papers -which he claimed showed that the-prosecution of the defendant for the crime of which he had been convicted was originally instituted in the Court of Special Sessions, and that the defendant moved to have the same transferred to the Court of General Sessions, and included in his motion papers was a stipulation, signed by-himself and his counsel, that if such motion were granted he would not plead in that court or raise the question that the- indictment Was not found- within the time prescribed in section 142 of the Code of Criminal-Procedure ; that the motion was granted upon that condition, the stipulation being incorporated in and made a part of the order; that the Statute of Limitations had not then run, and did pot until nine days thereinafter. This court, however, refused to receive such papers or to consider them upon the appeal, deeming it the better practice in a criminal case that the questions sought.to be reviewed should be determined solely from the record. There[616]*616fore, in passing upon the question, of whether the judgment ought to be reversed because the Statute of Limitations had run at .the time the indictment was found, I do so simply from what' appears in'. the record alone. '
I am of the opinion that the defendant is hot in a position to raise that question. At the opening of the trial' the defendant’s counsel moved to dismiss the indictment upon the ground' that it did not state facts sufficient to constitute a cause of action, at the same time saying: “I do not wish to discuss it. . I am limited by the agreement which I wish to hand up to your Honor, and I do not wish to go outside of. that agreement in making my motion,” to which the court responded: “ I think you are precluded by this stipulation,” and the counsel replied : “You think-1 am?” To which the court said.: “Yes.” Ho exception was taken to this ruling, the defendant’s counsel apparently acquiescing therein. What the agreement was to which counsel referred the record fails to disclose.' Thereupon the trial jrroceeded without a suggestion that the Statute of Limitations Lad run, or that the indictment had not been found in time. Hor was that question raised or even suggested at-the close of the People’s case.; After the People had rested, defendant’s counsel moved to .dismiss the indictment upon the ground that the facts given in evidence did not constitute a crime; that there was no evidence that the defendant had committed an Offense ; that the' People’s testimony ténded to show .that on the. eighteenth of March certain men.went into the -store and ordered Poland water; “ got some water; took it to a chemist and analyzed it, and upon the chemist’s analysis, that was not Poland Water; that is the long and short of this .case.” A further discussion took place, to the effect that the water was sold by a clerk, and that the defendant could not be held responsible unless he participated in the. act. The court denied the motion, and then a further motion" was made to direct the jury to acquit, on. the ground that' the evidence was not sufficient and did not prove the allegations set out in the indictment. The motions were denied, and thereupon defendant entered into-his defense. Ho motion was made at' the close of the entire case, nor was any request made- to have' the jury instructed with reference to the Statute of Limitations, or.
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McLaughlin, J.:
The defendant was convicted of a misdemeanor and he appeals from the judgment of conviction and orders denying motions to set aside the verdict and for á new trial and in arrest of judgment,
[614]*614The indictment under which the conviction, was obtained charged him with having violated sections 364, 438 and 438a of the Penal Code, in that on the 18th day of March, 1902, he knowingly and fraudulently exposed for sale and.sold as Poland spring water,'in bottles bearing the Poland-water labels and trade marks, water which Avas not Poland spring water.
The judgment of conviction is attacked principally upon two grounds, which will be considered in the order named, (1) that the learned recorder erred at the trial in admitting, against defendant’s' objection, certain testimony; and (2) .that the indictment was not found within two years after the alleged crime was committed.
First. At the trial the People called, as a Avitness. one Rosston, who, after, stating that he was employed by the defendant from the middle of November, 1899/ until March, 1901, during which period he sold mineral Avaters, was asked to state whether he sold to customers water from Poland water bottles, bearing Poland water labels, Avhicli Avas not Poland water. The question was objected to by. defendant’s counsel, and the objection sustained. After the People had rested, defendant Avas called as a Avitness in his own behalf, and on direct examination he testified that he did not.have any clerk Avhom he- directed to sell “ any water than Poland .Water out of Poland Water bottles.” On cross-examinatiqn, referring to the testimony he had thus given, he stated : “Mr. Osborne asked medid I ever instruct any clerk to sell Hygeia Water as Poland Water and I ansAvered ‘ No.’ That is correct.” He was then interrogated as to directions given to the Avitness Rosston and denied that he had directed him to refill Poland water bottles Avi'th other Avater .and sell it as Poland Avater, or that he knew .that any such practice prevailed iii the establishment of which he had charge. After the defendant had rested, Rosston Avas recalled and permitted, against defendant’s objection, 'to contradict liis statement, testifying that defendant had instructed him. to refill-Poland bottles with other water and to sell the same as .Poland AVatei, and that he knew of other instances in. which he had given such instructions. . '
I think thip testimony was admissible. The defendant had denied giving Rosston or any of his employees instructions to refill the Poland water bottles Avith other Avater and sell the same as Poland Ayater. If Ayas admissible for the purpose of contradicting defend[615]*615ant’s testimony. (Blossom v. Barrett, 37 N. Y. 434; People v. Schuyler, 106 id. 298; People v. Barone, 161 id. 451; Squier v. Hanover Fire Ins. Co., 162. id. 552.) It was not only admissible for this purpose, but I think it was admissible as bearing upon the defendant’s intent and rebutting any claiin of -mistake or accident as to the sale specified in the indictment. (People v. Everhardt, 104 N. Y. 591; People v. Molineux, 168 id. 264; People v. Doty, 175 id. 164; People v. Dolan, 186 id. 4.)
This brings us to the consideration of the main question argued on the appeal, viz., that the indictment was not found within two years after the commission of the crime for'which defendant has been convicted. The Code of Criminal Procedure provides that"an indictment for a misdemeanor must be found within two years after its commission (§ 142), and that an indictment is found when duly presented by the grand jury in open court and there received and filed. (§ 144.) The misdemeanor for which the defendant ivas indicted and convicted was committed on the 18th of March, 1902. The indictment was not filed until May 25,1904, more than two years thereafter. Thé defendant’s objection, therefore,.to the validity of the judgment of conviction is good if he. is in a position to raise the question. At the opening of the argument of the appeal before us the learned district attorney asked permission to file'with and have considered as a part of the record on the appeal certified copies of certain papers -which he claimed showed that the-prosecution of the defendant for the crime of which he had been convicted was originally instituted in the Court of Special Sessions, and that the defendant moved to have the same transferred to the Court of General Sessions, and included in his motion papers was a stipulation, signed by-himself and his counsel, that if such motion were granted he would not plead in that court or raise the question that the- indictment Was not found- within the time prescribed in section 142 of the Code of Criminal-Procedure ; that the motion was granted upon that condition, the stipulation being incorporated in and made a part of the order; that the Statute of Limitations had not then run, and did pot until nine days thereinafter. This court, however, refused to receive such papers or to consider them upon the appeal, deeming it the better practice in a criminal case that the questions sought.to be reviewed should be determined solely from the record. There[616]*616fore, in passing upon the question, of whether the judgment ought to be reversed because the Statute of Limitations had run at .the time the indictment was found, I do so simply from what' appears in'. the record alone. '
I am of the opinion that the defendant is hot in a position to raise that question. At the opening of the trial' the defendant’s counsel moved to dismiss the indictment upon the ground' that it did not state facts sufficient to constitute a cause of action, at the same time saying: “I do not wish to discuss it. . I am limited by the agreement which I wish to hand up to your Honor, and I do not wish to go outside of. that agreement in making my motion,” to which the court responded: “ I think you are precluded by this stipulation,” and the counsel replied : “You think-1 am?” To which the court said.: “Yes.” Ho exception was taken to this ruling, the defendant’s counsel apparently acquiescing therein. What the agreement was to which counsel referred the record fails to disclose.' Thereupon the trial jrroceeded without a suggestion that the Statute of Limitations Lad run, or that the indictment had not been found in time. Hor was that question raised or even suggested at-the close of the People’s case.; After the People had rested, defendant’s counsel moved to .dismiss the indictment upon the ground that the facts given in evidence did not constitute a crime; that there was no evidence that the defendant had committed an Offense ; that the' People’s testimony ténded to show .that on the. eighteenth of March certain men.went into the -store and ordered Poland water; “ got some water; took it to a chemist and analyzed it, and upon the chemist’s analysis, that was not Poland Water; that is the long and short of this .case.” A further discussion took place, to the effect that the water was sold by a clerk, and that the defendant could not be held responsible unless he participated in the. act. The court denied the motion, and then a further motion" was made to direct the jury to acquit, on. the ground that' the evidence was not sufficient and did not prove the allegations set out in the indictment. The motions were denied, and thereupon defendant entered into-his defense. Ho motion was made at' the close of the entire case, nor was any request made- to have' the jury instructed with reference to the Statute of Limitations, or. any ■ suggestion made by defendant’s, counsel that the defendant could not be convicted [617]*617because more than'two years had elapsed after the commission of the crime when the'indictment was found. After the verdict had been rendered, the defendant moved that it be set aside as against the weight of evidence and upon all the grounds specified in the Code. There was also a motion for a new trial upon the minutes upon all the statutory grounds, and for an arrest of judgment, but in none of these motions was there a suggestion about the Statute of Limitations; It is possible that that question was not raised for the reason stated by counsel at the beginning of the trial, but of this the record is silent. Whatever .the reason may have been, the fact remains that, so far as the record shows, the Statute of Limitations was not specifically raised, and not having been raised I do not see how the court on appeal can pass upon the question.
The question is quite similar to the one raised in People v. Austin (63 App. Div. 382; affd. on opinion of Hirschberg, J., 170 N. Y. 585). In that case the defendant was indicted for a murder committed some fourteen years before the indictment was found. He was convicted of manslaughter — an indictment for which must be found within five years (Code Crim. Proc. § 142), and the question as to whether the statute applied merely to the finding of the indictment or was a complete bar to the conviction was raised for the first time on appeal.
Mr. Justice Hirschberg, after reviewing the authorities' on either side of the question, said: “ This brief reference to the conflicting decisions' upon the subject is made because, as has been said, it involves the only point argued upon the appeal; but we do not feel called upon to decide the question in this case, inasmuch as it does not appear to have been properly raised in the court below. * * * The point could only be raised by proof upon the trial under the plea of not guilty (People v. Durrin, 2 N. Y. Crim. Rep. 328, and cases cited) and by some appropriate motion or request to charge.”
The Court of Appeals has recently adhered to the doctrine that even in a criminal case a question of law will not be considered on appeal unless raised at the trial by an exception. (People v. Huson, 187 N. Y. 97.) In the case last cited the defendant was indicted for manslaughter, but was convicted of assault. The Appellate Division reversed the judgment upon questions of. law only, the [618]*618opimon- indicating the ground was- that manslaughter negatives the idea of an intent to kill, while it is an essential element in the crime of assault lithe-first degree. (114 App. Div. 693.) The Court of Appeals held that neither it nor the AppeJlateDivision had power to consider this question, since it had not been raised by an exception. The order of the Appellate Division was reversed and the judgment of conviction affirmed. Judge Vann,'in delivering the opinion,- in which all concurred, said: “ That was a question of law, but it was not raised by any exception. Ho court can create any error of law by certifying that theré is one, and a question of law -in a criminal case, prosecuted by indictment, can be raised 'only by an exception. * * * There is no exception ih the record to justify the reversal * * • There Ayas no motion made at the close of the-evidence that the court should advise an acquittal, or that the defendant should be discharged. There was no exception to the charge that the jury could convict, of assault in the first degree and no-request made to charge upon that subject. When the case was .submitted to the jury-, therefore, the defendant was in the attitude of consenting that they might pass upon the evidence * * *."
■ . The motion in arrest of judgment brought up only the jurisdiction of the court over the subject-matter of the indictment, Avlnch is not disputed, and the question whether the facts stated in the indictment constitute a crime. (People v. Huson, supra.)
The motion to. set .aside the verdict as .against the-evidence and the weight of evidence did not- raise the question, nor did the motion for-a neAV trial Upon the minutes upon all the statutory grounds.
The defendant, not having raised the question at the trial, cannot noAv be heard upon the subject." Other errors, are alleged, especially in the exclusion of evidence; but, after an examination of the record,. 1 do not think any of them would justify a reversal of the judgment. .
The defendant had a fair trial; the' evidence established his guilt, and I think the judgment of conviction and orders appealed from should be affirmed.
Laughlin, J., concurred; Lambebt and Houghton, JJ., dissented.
Patterson, P. J.:
The affirmance of this judgment is upon the ground' that- the question of the-'Statute pf Limitations was, not. specifically raised at [619]*619the trial; and not having then been raised, it cannot be considered in the first instance on appeal from the judgment entered upon the verdict of the jury.
I concur in this view. It is undoubtedly a general rule in this State that questions of law in criminal cases can only be raised by exceptions (People v. Huson, 187 N. Y. 97) ¿ but that rule is not of universal application; for, as was said in People v. Bradner (107 id. 4): “If the record discloses upon its face that the court had no jurisdiction * * * or some other defect in the proceedings which could not be waived or cured and is fundamental, it would, as we conceive, be the duty of an appellate'tribunal to reverse the proceedings and conviction, although the question had not been formally raised in the court below and was not presented by any ruling or exception on the trial.” In the record in the case now before us it appears that at the time the indictment was filed more than two years had elapsed since the commission of the offense with which the defendant was charged. It is now urged by the respondent that inasmuch'as the attention of the-court W'as not called specifically to that fact, the defendant must be regarded as having waived the protection of the statute.
While it is true that the date named in the indictment is in some respects immaterial,'yet if the proof showed that the indictment was found two years and some months after the commission of the alleged offense and the defendant was during the whole of that time within the State of New York, a jurisdictional question might have arisen. The statute requires that an indictment must be found within two years after a misdemeanor is committed. The Statute of Limitations in a criminal case differs materially from that applying to civil actions. It is in effect a statute of oblivion (Whart. Cr. Pl. & Pr. [8th ed.] § 316); it banishes the offense from legal memory and extinguishes for all purposes of prosecution what othérwise would be a punishable criminal offense. But section 142 of the Code of Criminal Procedure must be considered in connection with section 143 of that Code which provides among other things that “ no time during which the defendant is not an inhabitant of or usually resident, within the State or usually in personal attendance upon business or employment within the State is part of the limitation,” and it •seems to me that it was necessary for the defendant to show that [620]*620the last-mentioned section did not apply. There is a presumption that the indictment was properly found by the grand jury and that the trial court had jurisdiction-. ■ That presumption is not overcome by the proof in this record. Jurisdiction of the subject-matter means the power lawfully Conferred to deal with the par-' ticular subject involved in a particular action in a civil court or of a particular offense charged in an.indictment in a criminal prosecution. In the latter case the question now presented could only be raised'at the trial on a plea of not guilty and on proof of the facts. Has a criminal court jurisdiction to proceed to judgment where it appears in the evidence that there is no indictable offense before it ? That situation may involve not only jurisdiction of the person but it may be argued also involves the subject of the indictment, namely, ah offense which is obliterated, so far asa criminal prosecution is concerned. But that question is not raised ■ by this record for the reason, as said before, that the proof fails to overcome the presumption-of jurisdiction.