Hardin, P. J. :
It is provided in section 275 of the Code of Criminal Procedure that the indictment must contain “ a plain and concise statement of the act constituting the crime without unnecessary repetition.”
[235] In section 278 of the Code of Criminal Procedure it is provided, viz.: “ The indictment must charge but one crime and in one form, except as in the next section provided.”
Section 279 of the Code of Criminal Procedure provides, viz.; “ The crime may be charged in separate counts to have been committed in a different manner or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.”
These sections have lately been construed by the Court of Appeals in People v. Wilson (151 N. Y. 403). In the case cited it has been held that the effect of the provision of section 279 of' the Code of Criminal Procedure, that “ ‘ where the acts complained of may constitute different crimes, such crimes may be charged in separate counts,' constituting an exception to the provision of section 278 that ‘'the indictment must charge but one crime,' is to permit a continuance of the former practice of joining different crimes by separate counts when they all relate to the same transaction.”
“The act” constituting the crime alleged in the indictment against the defendant is that ho “ did, on or about the 26th day of March, 1896, * * * sell, and cause, suffer and permit to be sold, liquor in quantities less than five gallons, * * * and did, then and there, unlawfully deliver and cause to be delivered, in pursuance of such sale, to the said James Whalen and C. A.* Robinson, and to said divers other persons, and to said divers persons to the jury aforesaid unknown, liquor, to-wit, one pint distilled spirits (and other enumerated kinds of liquor) without having paid a tax therefor, and obtained and posted a liquor tax certificate as required by the provisions of chapter 112 of the Laws of 1896."
In People v. Adams (17 Wend. 475) it was held, viz.: “In an indictment for selling spirituous liquors without license it is not necessary to specify the names of the persons to whom the sales were made. A count in such an indictment charging the sale of divers quantities of different sorts of liquors to divers citizens of the State, and to divers persons unknown, cannot be objected to on errólas a count embracing more than one offence; the whole will be deemed a single transaction. The public prpsecutor, however, on such a count may, on the trial, be confined to the proof of a single [236] offence. An indictment charging an offence on a particular clay, and also on divers other days, is good; a day certain being alleged, the residue will be rejected as surplusage.”
In the indictment before us only one day is mentioned, to wit, the 26th of March, 1896.
In the course of the opinion delivered in People v. Adams (supra) Nelson, Ch. J., said: “ It is to be remarked that the offense upon the statute consists in the act of selling the spirituous liquors without the license, and, therefore, the designation of the persons to whom sold is in no way material to constitute it. The question is simply one of pleading whether certainty to a common intent requires the names of the persons to be given to whom the liquor was sold.”
Although the indictment in that case averred that the defendant sold by retail “ to divers citizens of this State, and to divers persons to the jurors aforesaid unknown, and did deliver, in pursuance of such sale, to the said divers citizens, and the said divers persons to the jurors aforesaid unknown, strong and spirituous liquors,” to be drank in the house of John Adams at the city of Utica, the learned judge in that case observed that the claim that the count contained more than one offense could not be sustained, and he adds: “ Upon our view of the time when the offence is laid in the indictment, that is, upon the day given, but one sale by retail is to be deemed charged in the count; the three gills of brandy, three gills of rum, etc., are to be viewed as having been sold at one and the same time, and as constituting but one transaction. * * * If we strike out the words 'divers days and times,’ etc., as we have seen may be done, or, in other words, as the defendant may require the prosecutor to confine his proof on the trial the same as if they were expunged, then but one offence is charged in the count, and the conviction cannot, of course, extend beyond it; a single sale of the quantity of liquor mentioned, to divers citizens of the State, and to divers persons unknown,” etc. That case was referred to with approval in Osgood v. The People (39 N. Y. 451), which latter case was decided in 1868, before the passage of the Code of Criminal Procedure.
.The indictment is quite unlike the one under consideration" in People v. O’Donnell (46 Hun, 360). In that case the indictment alleged sales on four different days, naming them.
[237] We are of the opinion that no error was committed in overriding the demurrer to the indictment.
(2) Upon the trial, the People called as a witness James Whalen, who testified that he went into the defendant’s hotel on the 26tli of March, 1896, and that the bartender was behind the bar, in the barroom, at the time. The witness adds: “ I told him I wanted a half pint of whiskey. He passed it right out, and I paid him twenty-five cents. * * * That was the first I was in that house that day. I had two half pints. That was about two o’clock; the other time, about half-past three the same day, I again went into the hotel. I went to the barroom. I saw the same person behind the bar. I got a half pint of whiskey. * * * I took it and put it in my pocket. I got it of Mr. Coleman (the bartender), and paid twenty-five cents for it.” In the course of his cross-examination the witness stated that he was acquainted with O. H. Iíobinson, and he adds : “ I did not see him the day I got the whiskey. He had nothing to do with the purchase of that whiskey.”
It appears by the evidence that Archie Worden participated in drinking the whiskey that was purchased by Whalen, and that he was placed in the lockup, and that certain proceedings were instituted before one W. H. Scott, a justice of the peace, on the day after the alleged sale of the whiskey, or the day thereafter, and an affidavit was made before the justice by Whalen which was received in evidence, without objection, before the trial closed, and in that affidavit Whalen says, viz.: “ On the 26tli day of March, 1896, I went into the said hotel, to wit, The American House, at the town and village of Friendship, Allegany County, and then and there bought of the bartender, in the said house, two one-half pint bottles of whiskey. I know it was whiskey, as I drank a large portion of it myself. I was somewhat intoxicated at the time I got this whiskey. I bought it of a man behind the bar in said hotel, whose name I do not know, but lie was a short, thick-set man. I paid twenty-five cents for each half pint I got there.”
The testimony of Whalen, coupled with the affidavit, which was received without objection, clearly established, if credited, a violation of the statute, and that it occurred on the 26th day of March, 1896, as alleged in the indictment.
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Hardin, P. J. :
It is provided in section 275 of the Code of Criminal Procedure that the indictment must contain “ a plain and concise statement of the act constituting the crime without unnecessary repetition.”
[235] In section 278 of the Code of Criminal Procedure it is provided, viz.: “ The indictment must charge but one crime and in one form, except as in the next section provided.”
Section 279 of the Code of Criminal Procedure provides, viz.; “ The crime may be charged in separate counts to have been committed in a different manner or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.”
These sections have lately been construed by the Court of Appeals in People v. Wilson (151 N. Y. 403). In the case cited it has been held that the effect of the provision of section 279 of' the Code of Criminal Procedure, that “ ‘ where the acts complained of may constitute different crimes, such crimes may be charged in separate counts,' constituting an exception to the provision of section 278 that ‘'the indictment must charge but one crime,' is to permit a continuance of the former practice of joining different crimes by separate counts when they all relate to the same transaction.”
“The act” constituting the crime alleged in the indictment against the defendant is that ho “ did, on or about the 26th day of March, 1896, * * * sell, and cause, suffer and permit to be sold, liquor in quantities less than five gallons, * * * and did, then and there, unlawfully deliver and cause to be delivered, in pursuance of such sale, to the said James Whalen and C. A.* Robinson, and to said divers other persons, and to said divers persons to the jury aforesaid unknown, liquor, to-wit, one pint distilled spirits (and other enumerated kinds of liquor) without having paid a tax therefor, and obtained and posted a liquor tax certificate as required by the provisions of chapter 112 of the Laws of 1896."
In People v. Adams (17 Wend. 475) it was held, viz.: “In an indictment for selling spirituous liquors without license it is not necessary to specify the names of the persons to whom the sales were made. A count in such an indictment charging the sale of divers quantities of different sorts of liquors to divers citizens of the State, and to divers persons unknown, cannot be objected to on errólas a count embracing more than one offence; the whole will be deemed a single transaction. The public prpsecutor, however, on such a count may, on the trial, be confined to the proof of a single [236] offence. An indictment charging an offence on a particular clay, and also on divers other days, is good; a day certain being alleged, the residue will be rejected as surplusage.”
In the indictment before us only one day is mentioned, to wit, the 26th of March, 1896.
In the course of the opinion delivered in People v. Adams (supra) Nelson, Ch. J., said: “ It is to be remarked that the offense upon the statute consists in the act of selling the spirituous liquors without the license, and, therefore, the designation of the persons to whom sold is in no way material to constitute it. The question is simply one of pleading whether certainty to a common intent requires the names of the persons to be given to whom the liquor was sold.”
Although the indictment in that case averred that the defendant sold by retail “ to divers citizens of this State, and to divers persons to the jurors aforesaid unknown, and did deliver, in pursuance of such sale, to the said divers citizens, and the said divers persons to the jurors aforesaid unknown, strong and spirituous liquors,” to be drank in the house of John Adams at the city of Utica, the learned judge in that case observed that the claim that the count contained more than one offense could not be sustained, and he adds: “ Upon our view of the time when the offence is laid in the indictment, that is, upon the day given, but one sale by retail is to be deemed charged in the count; the three gills of brandy, three gills of rum, etc., are to be viewed as having been sold at one and the same time, and as constituting but one transaction. * * * If we strike out the words 'divers days and times,’ etc., as we have seen may be done, or, in other words, as the defendant may require the prosecutor to confine his proof on the trial the same as if they were expunged, then but one offence is charged in the count, and the conviction cannot, of course, extend beyond it; a single sale of the quantity of liquor mentioned, to divers citizens of the State, and to divers persons unknown,” etc. That case was referred to with approval in Osgood v. The People (39 N. Y. 451), which latter case was decided in 1868, before the passage of the Code of Criminal Procedure.
.The indictment is quite unlike the one under consideration" in People v. O’Donnell (46 Hun, 360). In that case the indictment alleged sales on four different days, naming them.
[237] We are of the opinion that no error was committed in overriding the demurrer to the indictment.
(2) Upon the trial, the People called as a witness James Whalen, who testified that he went into the defendant’s hotel on the 26tli of March, 1896, and that the bartender was behind the bar, in the barroom, at the time. The witness adds: “ I told him I wanted a half pint of whiskey. He passed it right out, and I paid him twenty-five cents. * * * That was the first I was in that house that day. I had two half pints. That was about two o’clock; the other time, about half-past three the same day, I again went into the hotel. I went to the barroom. I saw the same person behind the bar. I got a half pint of whiskey. * * * I took it and put it in my pocket. I got it of Mr. Coleman (the bartender), and paid twenty-five cents for it.” In the course of his cross-examination the witness stated that he was acquainted with O. H. Iíobinson, and he adds : “ I did not see him the day I got the whiskey. He had nothing to do with the purchase of that whiskey.”
It appears by the evidence that Archie Worden participated in drinking the whiskey that was purchased by Whalen, and that he was placed in the lockup, and that certain proceedings were instituted before one W. H. Scott, a justice of the peace, on the day after the alleged sale of the whiskey, or the day thereafter, and an affidavit was made before the justice by Whalen which was received in evidence, without objection, before the trial closed, and in that affidavit Whalen says, viz.: “ On the 26tli day of March, 1896, I went into the said hotel, to wit, The American House, at the town and village of Friendship, Allegany County, and then and there bought of the bartender, in the said house, two one-half pint bottles of whiskey. I know it was whiskey, as I drank a large portion of it myself. I was somewhat intoxicated at the time I got this whiskey. I bought it of a man behind the bar in said hotel, whose name I do not know, but lie was a short, thick-set man. I paid twenty-five cents for each half pint I got there.”
The testimony of Whalen, coupled with the affidavit, which was received without objection, clearly established, if credited, a violation of the statute, and that it occurred on the 26th day of March, 1896, as alleged in the indictment.
In section 31 of chapter 112 of the Laws of 1896 it is provided :
[238] “ It shall not be lawful for any corporation * * * or person, which, or who, has not paid a tax, as provided in section eleven of this act, and obtained and posted the liquor tax certificate, as provided in this act, to sell, offer or expose for sale, or give away liquors in any quantity less than five wine gallons at a time; nor, without having paid such tax and complied with the provisions of this act, to sell, offer or expose for sale, or give away liquor in any quantity whatever, any part of which is to be drunk on the premises of such vendor. * * * ”
In section 33 of that act it is provided that any pierson engaged in the traffic of liquors “ shall, upon conviction of a violation of any -of the p>ravisions of this act, be liable for and suffer the penalties inrposed therein; * * * and each violation of any of the provisions of this act shall be construed to constitute a sepmrate and compélete offense ; and for each violation on the same day, or on different days, the person or peersons offending shall be liable to the penalties and forfeitures impeosed by this act.”
The evidence given as to the piurchase made by Whalen, if credited, was sufficient “ to constitute a seprarate and compílete offense,” as declared in the language of the statute which has just been quoted.
The People put upon the stand C. H. Robinson as a witness, who testified that in the latter part of March he had occasion to go to this hotel, and he was then asked : “ Q. Did yon have anything to drink there?” The defendant objected to the question on the ground that it was “ inconrpetent and seeks to prrove another and distinct crime from the one already sought to be proved.” The witness then added : “ I cannot tell you what day it was. Have not very much recollection of the time. Have no means of telling when it was. I was sworn before Mr. Scott.” Thereupron the following question was pn-oprounded to him : “ Q. Did you, in that affidavit, state when it was you had something to drink in that hotel? ” This was objected to again on the ground that it was incompretent, immaterial and irrelevant. The objections were overruled and the defendant took an exception. The witness answered : “ I think the affidavit would refresh my mind as to what I did say.” Thereupon the district attorney put in the hands of the witness a papier and -asked him to read it, and then pnropiounded to the witness the fol[239] lowing question: “ Q. Can you state to the jury when it was you had anything' to drink in Huffman’s Hotel the latter part of March?” This was objected to by the defendant as “incompetent. 2d. Seeks to prove a separate and distinct crime from the one already sought to he proved. 3d. Inadmissible under the indictment.” The objections were overruled and the defendant took an exception. The witness answered : “ Some time in March. It was previous to the prosecution, but cannot tell how long before. I guess I did swear how long it was. I guess I can tell what I swore to. It says so in that affidavit. The affidavit was made on the 28th day of March.” The following question was then propounded to him: “ Q. What was it you did on the occasion referred to ? ” The defendant objected to the question on the ground that it was “ immaterial, irrelevant, seeking to prove a distinct crime from the one already sought to be proved. Inadmissible under the indictment.” The objections were overruled and an exception taken. The witness answered: “ I drank at the bar there; drank beer; and I drank whiskey there. I bought the whiskey of this young man Coleman. I bought one drink of him and I guess I paid ten cents. Paid it to Coleman. I was in the habit of going in and out of there sometimes three or four times a day.”
The language used in the indictment would warrant the construction apparently given to it by the county judge that the averment was that the sale was to Whalen and Robinson jointly, which was doubtless the view taken by the county judge in order to overcome the objections made by the defendant to the indictment. (People v. Harmon, 49 Hun, 558; S. C. affd., 112 N. Y. 666.)
The People, however, in producing evidence, gave testimony to the effect of the independent sale made to Whalen of the whiskey on two different occasions (there being no objection to the second occasion), and when the attempt was made by the evidence of Robinson to prove another violation, it was apparently to prove a violation not specifically mentioned in the indictment.
As we have seen, the statute provides that each violation shall be a complete offense. If the evidence which was offered and received from the witness Robinson is received and considered, then the People are in the attitude of proving an additional offense to the one alleged in the indictment.
[240] The refusal of the defendant’s counsel to concede that the People had proved one offense by the testimony of Whalen, does not seem to be an adequate excuse for allowing evidence from Robinson of a distinct, separate, independent violation of the law.
Section 33 of chapter 112 of the Laws of 1896 provides that “ each violation on the same day, or on different days,” shall subject the person offending “ to the penalties and forfeitures imposed by this act.” If the evidence of Robinson was competent, then we have an anomalous situation of an indictment alleging a sale to Whalen and Robinson as a sale to them jointly; proof of sale to Whalen under that indictment and then proof of sale on another occasion to Robinson in the absence of Whalen.
As already stated, section 275 of the Code of Criminal Procedure prescribes that the indictment shall contain “ a plain and concise statement of the act constituting the crime.” It will hardly do to allege an act in violation of law by a sale to two persons jointly, and to prove the sale to one independent of the other, and having given such proof of the act constituting the crime, to prove another additional act; especially under a statute which declares that each and every violation of any of its provisions “ shall be construed to constitute a separate and complete offense ” and subject the party accused of a violation “ for each violation on the same day, or on different days,” to a penalty. (People v. Krank, 110 N. Y. 488; People v. Charbineau, 115 id. 433, which was commented upon in People v. Wilson, 151 id. 409.)
If the foregoing views prevail, it will lead to a reversal of the judgment and order and a new trial.
All concurred.
Judgment upon the verdict and order denying a new trial reversed and a new tidal directed in the County Court of Allegany county, to which county, after entry of judgment in pursuance of section 547, etc., of the Code of Criminal Procedure, the proceedings are remitted.