#### People *v.*Bradt.

*(Supreme Court, General Term, Third Department.*

November, 1887.)

1. Intoxicating Liquors—Sale without License—Complaint.

A complaint alleging that defendant sold “one bottle of port wine” without a license does not charge an offense under Laws N. Y. 1857, c. 628, § 13, prohibiting the sale of liquors “in quantities less than five gallons at a time without having a license therefor. ”

8. Same—Evidence—Previous Arrest.

Where defendant in a prosecution for selling liquor without a license introduces evidence that he was not the proprietor of the place in question, but had leased it to another, evidence that defendant was arrested about a year before for keeping *158a disorderly house at the place in question is not admissible to prove proprietorship, unless there is also evidence that it was the practice to refuse licenses to persons who had been charged with such offenses, of which fact defendant knew, or that an application by him had been refused on that ground, or that he had reason to fear that it would be so refused, as showing a motive for his making a pretended lease, and applying for a license in the name of another.

Appeal from special sessions, city of Albany.

Proceeding against Isaac Bradt for selling liquor without a license. The complaint, which was made by one James Powell, alleged that complainant on October 5, 1887, “at líos. 66 and 68 Green street, in said city of Albany, did purchase as a beverage one bottle of port wine from one Susan Mitchell and Isaac Bradt, and did then and there drink the same, ” and that said Mitchell and Bradt had no license to sell liquors in quantities less than five gallons at a time. On trial by the court without a jury, defendant was found guilty, and sentenced to six months’ imprisonment. Defendant was compelled to testify, over objection, that he had been arrested about a year before on a charge of keeping a disorderly house at the place where the liquor was sold to complainant; the evidence being admitted to prove proprietorship.

. Argued before Parker, Landon, and Pish, JJ..

*John W. Walsh*and *Edward J. Meegan,*for appellant. *Andrew Hamilton,*Asst. Dist. Atty., for the People.

Parker, J.

The averments in the complaint are insufficient to charge the offense of which the defendant was found guilty. The charge it assumes to make against the defendant was based upon chapter 628, Laws 1857, § 13: “ Whoever shall sell any strong or spirituous liquors or wines in quantities less than live gallons at a time, without having a license therefor, ” etc. The complaint alleges a sale of one bottle of port wine, without alleging that only one bottle was sold, or that the quantity sold was less than five gallons. Averring affirmatively that the defendant did sell one bottle, without some words negativing a larger quantity, is not bringing the case within the statutes. Bish. St. Crimes, § 1039.

It was error to compel the defendant to testify that he had been arrested for keeping a disorderly house in the premises in question over a year before. It is well settled that the mere fact of an arrest, based upon some other charge than that of which a defendant is being tried, is not admissible for the purpose of affecting his credibility. *People*v. *Crapo,*76 N. Y. 288. The court, evidently bearing this rule in mind, in overruling the objection made by the defendant, received the evidence “solely for the purpose of showing proprietorship.” To justify the ruling, therefore, it must appear to have been material evidence upon the question of proprietorship. The people proved that the defendant was the owner of the premises in which the bottle of port wine was alleged to have been sold, and was at the house every day and evening nearly, and at times was seen behind the bar. The defendant testified that, about the 1st of May previous to the alleged selling, he leased the premises to one Lizzie Welch for $15 a week and his board; he to retain a room in the house for his personal occupancy. As to the leasing, he was fully corroborated by Lizzie Welch, who further proved that she had obtained a government license in her own name, and had also applied for a license from the local authorities, and had deposited the sum of money usually required, but that no license had been granted her. It was claimed on the part of the people that the pretended leasing was a mere cover, the defendant being the actual proprietor; and it is argued that evidence of the arrest was proper, in that it furnished a reason for his applying for a license in some other name than his own. I am unable to find anything in the evidence justifying such an argument. Had the defendant been convicted for a year before the violation of the excise law, the statute would have prevented him from obtaining a license; and, as every man is bound to know the law, it could- have been argued fairly *159from the record of conviction and the statute that the defendant, knowing that the law prevented him from obtaining a license in his own name, sought to obtain it for his own benefit by using the name of another. The mere arrest, however, for the violation of the excise law, not followed by a conviction, does not forfeit his license as a matter of law; neither does his arrest for the offense of keeping a disorderly house work a forfeiture of it. It follows that defendant had no reason to apprehend that such arrest constituted a legal obstacle to his obtaining a license. Then, unless facts were proven tending to show that it was the practice of the excise commissioners not to grant license in such eases, of which fact he knew, or that he had been refused, on application, because of such trouble; or that from information-obtained he had been led to expect such a result,—it is difficult to see what possible bearing that evidence can have upon the question of proprietorship. There was no such evidence. Hot a word can be found in the case showing or tending to show, or from which it can be argued, that the defendant apprehended difficulty in obtaining a license because of the arrest. That fact, then, standing alone, as it does in this case, was not material to the issue, and the court was not justified in receiving that which it was clearly objectionable to receive generally by simply limiting it to an issue concerning which it was not a material fact. Judgment and conviction reversed, and defendant discharged.

Landon, J„ concurs. Fish, J., concurs upon the first ground stated only.