Ray v. State

New York Court of General Session of the Peace

Ray v. State

100 A. 472, 29 Del. 440, 6 Boyce 440, 1917 Del. LEXIS 13

CourtNew York Court of General Session of the Peace

DecidedApril 9, 1917

DocketNo. 57

StatusPublished

Cited by2 cases

This text of 100 A. 472 (Ray v. State) is published on Counsel Stack Legal Research, covering New York Court of General Session of the Peace primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ray v. State, 100 A. 472, 29 Del. 440, 6 Boyce 440, 1917 Del. LEXIS 13 (N.Y. Super. Ct. 1917).

Pincite

Opinion

Boyce, J.,

delivering the opinion of the court:

[1-4] The single count in the information imports a sale at the same time to the three persons named therein. The information is not, therefore, duplicitous. If it were, duplicity, by the better opinion, is a formal defect, and objection thereto must be taken by demurrer. Pleading over cures the defect; and judgment after verdict will not be arrested for duplicity.

[5] The unlawful sale charged is alleged to have been made to three persons named in the information. The proof is that the sale was made to one of them. The essential elements of the offense charged is the sale <?f intoxicating liquor without a license.

Is the variance shown fatal? A variance between the alie-' gation and proof of the ownership of goods stolen is fatal. State v. Hearns, 2 Harr. 530. It is generally held that a variance in the name or names of persons, other than the accused, necessary to be inserted as a part of the description of the offense, is fatal; for the reason that a true description of the offense is necessary to the accused in preparing his defense. If the variance is in an immaterial matter it is not fatal. On a charge of a sale of intoxicating liquor, without a license to three persons, as laid in this case, the court is of the opinion that it is sufficient to prove such a sale to one of them. Such proof does not establish another and distinct offense. The variance shown is not of a matter legally essential to the offense charged, and is not prejudicial to the accused.

The motion is denied.

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Boyce, J.,

delivering the opinion of the court:

[1-4] The single count in the information imports a sale at the same time to the three persons named therein. The information is not, therefore, duplicitous. If it were, duplicity, by the better opinion, is a formal defect, and objection thereto must be taken by demurrer. Pleading over cures the defect; and judgment after verdict will not be arrested for duplicity.

[5] The unlawful sale charged is alleged to have been made to three persons named in the information. The proof is that the sale was made to one of them. The essential elements of the offense charged is the sale <?f intoxicating liquor without a license.

Is the variance shown fatal? A variance between the alie-' gation and proof of the ownership of goods stolen is fatal. State v. Hearns, 2 Harr. 530. It is generally held that a variance in the name or names of persons, other than the accused, necessary to be inserted as a part of the description of the offense, is fatal; for the reason that a true description of the offense is necessary to the accused in preparing his defense. If the variance is in an immaterial matter it is not fatal. On a charge of a sale of intoxicating liquor, without a license to three persons, as laid in this case, the court is of the opinion that it is sufficient to prove such a sale to one of them. Such proof does not establish another and distinct offense. The variance shown is not of a matter legally essential to the offense charged, and is not prejudicial to the accused.

The motion is denied.

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Bluebook (online)

100 A. 472, 29 Del. 440, 6 Boyce 440, 1917 Del. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-v-state-nygensess-1917.

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