People v. Mueller

2 Liquor Tax Rep. 13, 56 N.Y.S. 1113

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1899
• Status: Published

Opinion

The question whether or not a sandwich or a cracker constituted a meal was submitted -to the jury. There was no question to submit to the jury as to whether the men were guests or not, and this was not asked or requested by defendant's counsel.

There was an error in charge of judge that “ While I do not think it necessary in this case to submit that question to you, if you believe the plaintiff’s witnesses ” because there was no controversy between the witnesses of the People and the defendant’s witnesses, and if there were any errors, it was cured by subsequent utterance of the court.

The sentence imposed is no part of the judgment of conviction, and cannot be remedied or reviewed on this appeal.

Judgment of conviction modified by striking therefrom the words, “And in default of the payment thereof to be committed to the Erie county penitentiary at hard labor until such fine shall be paid not exceeding one day’s imprisonment for each and every dollar so imposed as a fine,” and as so modified judgment affirmed. The judgment to be entered and certified to the-Supreme Court of Erie county, pursuant to section 547 of the Code of Criminal Procedure.

All concurred, except Ward, J., not voting.