People v. Smith

1 Liquor Tax Rep. 342

• Court: New York County Courts
• Decided: May 15, 1898
• Status: Published

Opinion

Houghton, J.:

I think it appears upon the face of the indictment that there is but one crime charged.

The first count alleges that the defendant sold liquor to one Hollis H. Bailey, in quantities less than five wine gallons at a time, to be drunk upon the premises where sold, at the town and village of Saratoga Springs, in the county of Saratoga, on the 19th day of April, 1897, without having paid the liquor tax and obtained and posted up the liquor tax certificate permitting him to sell and dispose of liquors in that manner.

The second count charges the selling to have been done by the same defendant, to the same person, on the same day and at the same place, and in the same manner, and only differs from the first count in alleging that the liquor was in fact drunk upon the premises where the same ivas sold.

I do not think that this should be construed as charging a second offense, but that on the contrary it may be said to be fairly within the rule which permits the charging of the same crime to have been committed in different ways, by different counts in the same indictment.

I think the indictment charges only one crime, alleging it to have been committed in a different manner by the two counts.

The demurrer is disallowed and overruled, and the defendant is permitted, at his election, to plead to the indictment.

Let an order and judgment be entered accordingly.

Defendant excepts.