People v. Kozak

156 A.D. 460, 142 N.Y.S. 39, 1913 N.Y. App. Div. LEXIS 6511

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1913
• Status: Published

Opinions

McLennan, P. J.:

The evidence tends to show that Peter Kozak was the proprietor of a saloon or place in which liquor was illegally sold, and in which said alleged violation took place; that he sold such liquor in the morning at about seven o’clock, and that later in the forenoon his brother, John Kozak, also made a similar sale in such saloon or place. We think that the sale by the proprietor and the sale by his brother John, whether as agent, * copartner or otherwise, constituted an offense within the meaning of the statute as far as the proprietor of the saloon is concerned, and that the two sales made upon the same day at the same place could properly be considered as one crime, for which the proprietor, Peter, might be indicted and convicted, and that the sale upon one of such occasions by John made him a joint offender with the proprietor, for which both are liable to be punished, and, therefore, that they were both properly jointly- indicted and convicted. (Hall v. McKechnie, 22 Barb. 244; People v. Utter, 44 id. 170; 2 Woollen & Thornton Law of Intoxicating Liquors [1910 ed.], §§ 802, 803, 806, 813, 821.) We think that the provisions of the statute bearing upon this question are very significant. It provides:

“ § 35. Persons liable for violations of this chapter. Any person engaged in the traffic in liquors, whether as officer of a corporation, or association, or as a member of a copartnership, or an individual, shall upon conviction of a violation of any of the provisions of this chapter be liable for and suffer the penalties imposed therein; and any clerk, agent, employee or servant shall be equally liable as principals for any violation of the provisions of this chapter, and except as hereinafter provided, each violation of any of the provisions of this chapter shall be construed to constitute a separate and complete offense, and for each vidlation on the same day, or. on different days, the person or persons offending shall be liable to the penalties and forfeitures imposed by this chapter; and in section thirty-six providing for penalties and forfeitures when corporations or associations are referred to, and penalties and forfeitures are imposed thereon, the same shall be understood to mean and • apply to the officers of such corporation or association. All violations of this chapter, committed by any person on the same day, shall together constitute but one crime, which shall be denominated the crime of ‘violating the liquor tax law,’ and it shall be competent to prove, on the trial or hearing, each separate violation committed on said date, provided each violation proved is set forth in the indictment, charge or complaint, in general or specific terms.” (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 35, as amd. by Laws of 1909, chap. 281.)

We conclude that there being evidence tending to show that Peter Kozak was the proprietor of the saloon or place in question and that he himself sold intoxicating liquors in violation of the statute in the morning of such day and later in the day by his brother, John Kozak, the other defendant, as bartender, agent, servant, copartnér or otherwise, both were guilty of the. offense charged, namely, that of “violating the liquor tax law,” and were properly jointly indicted and convicted.

I think- the judgment appealed from should be affirmed.

Kruse, Robson and Lambert, JJ.; concurred in result in a separate memorandum by Kruse, J.; Foote, J.., dissented in an opinion.