New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1846-09-26
The Grog-shop Indictments In Brooklyn-The
Law. JndicisIy Sustained


Whiting and George Woo :or The defendants
On the 18th. the Co1-r decided ths causes against
the defendants
The following opinion was del5veged b Judge
BAacuLo
Tee question. IN ri. case s-se On demurrer to tie
indictment 4gsir-- ne det=ndan. tor sizing iizecT @
The indictment contains four coza;. The rs: eoun.
n substance i1st re !eore O. A-az County To;sd
No License" O. the th:d Tuesday q Ma: ast and tna'
The deieldzn: stlsrwaTd. wl,aoE- license az -! "
rsei 70 di1e-s ctl.e u Ills So. cu 70 6oe-s psons
til Jlror. 4zknooz c-1 spurious iigzo-s cnS
xak. . ~, t oe drank o. ire premises, &c &c
suffered re same % 5e S-zrk &c a=z-c=: ire :o- c:
the statute. &c.
gard % voting license sno charges ;aat he deien
anr = hou- license id seL ~ -st1I aaf n quantities
izs :aca IRE gallons e 15es ci:ss .? his sex eEe
9iy-s persons % .e Jurors lg2., str5R c5 s7z-I.aous
i5g9rs lHd ;ct>s &c e 5. against me iorrn OF TIE
statute.
license I'D sci 5ra- . dt5ers ci-sns Of is sac.
md TO diccrs gs0ns .ts Jurors EHkR9rH rozg end
sDlrl,Dous iisH0rs 7aS iHes 70 oi r. and suffered the
same 70 be drank &c against The form Of the ec.
The fo2r:i count merely ayers mat the defendant
without license did ser By rgr11l in QUANTITIES less .kaE
re gcioH: d5re-s csHs q tsis Sd'e a7sS % ds5ers per
70 < Jurors lzon sroaE eae .7ri,oas hglors c79
l7ire. 20 acI &c against form OF the statute. &c
The Ersr objection made 10 the Indictment IS ;ha; II
does no: in sny OF the counts give The names Of the
divers citizens 10 whom the liquor was sold
The English authorities or TINS point are Tot entirely
Uniform and there seems be force n The argc
Ient defendant the tral may 5e surprised by
and unprepsred 70 meet Inc specific charges proved
But so tar s. this count i concerned. the question
must be deemed settled by the Of The People ys.
adams u Wen -. The indictment n that case was
u! tns raspec precisely Ike the present and although
ina; after Terdct-the reasoning OF the Supreme
Court quite applicable 10 The case Of demurrer:
The Court say The offence upon The statute consists
u the of :e the spurious liquors without license
and therefore the designations Of The pTsors 70 whom
sold IS II way ynater!a! 10 constitute II
The second objection taken by the defendants Coun-
sci Is the Indictment Is framed upon both the act
Of 1890 and the OF oi5. and being The indictment
should conclude contra torraGr sta,aroru7.
The lrst this objection - THAI each count i
framed unde! o1e and under and The P
raj conclusion would therefore be improper.
again the Revised Statutes q R. s o. 609 sec 50 dis
pose Of the objection by declaring that no Indictment
shal be deemed invalid by reason Of emitting 10
charge any offence TO have been committed contrary
statute contrary 10 several statutes, or by reason
OF any other defect iperecuon il matters OF form
which shall not tend the prejudice OF the defendant
Il is also commended By tn defendants Counsel that
the first and second counts bad because they are
founded tie law of 1890 and not the law OF ai5
il this be true the objection IL undoubtedly fatal Tor
they show that the law OF lci5 is brought into opera
non are these counts. then based upon the law OF
1890 In answering This question il Will be necessary
compare the TWO acts and ascertain the intention OF
the Legislature.
The afteenth section OF the former law q R. 8 SD
forbids the sale OF spirtuous liquors or wines
in quantities less than i've gallons. without grocers
license
The sixteenth section forbids the sale without license
tavernkecper. OF strong or spIrituous liquors
wines, 20 be drank on the premises.
The law OF 1916 sec 3 renders IL unlawful after the
Electors have voted No License sell by retail i1foz-
icq,ilg or sp-tuous liquors or wines.
II will be perceived that the act introduces two
words used the old and, for the first time
makes IL offence retail intoxicating liquors Of any
description and IN cHy quantity
The Statute OF 1890 did extend all kinds OF IN
toriea;a.y liquors The Legislature therefore in max
ing of that term in the law Of ci5 obviously intend
ed apply the penalties not before embraced
again this Statute reaches all reaiins such liquors,
whether in quantities less greater than i've gallons
and whether 10 be drank on the premises or not In
this respect also comprehensive than the for
Statute.
The fair construction OF the two would leave the
old law in force in those where the people voted
License so that license would afford protection
and indictment such case that the offend
without license, and had sold strong spiruOus
liquors or wines in quantities less than five gaons-or
TO be drank the premises But IN those cities and
towns where the people voted No License the act of
loi5 has taken effect and all that necessary proper
10 be stated IN the Indictment in that respect is. that
the defendant did sell by retail Intoxicating liquors -
Or did sell by retail spurious liquors or did sell By
retail wines either OF which allegations would consti-
tue offence, and under the indictment sufficient
ltfolows from this reasoning that the first and second
counts OF this indictment are Inaruhcaly and unsA!
fully drawn. The pleader 10 have been in doubt
under which statute to proceed and has endeayored ~
unite the substance OF both But this does neces.
sariy render the counts bad On the contrary think
there is sufficient in each count 20 make good under
the law OF lsi5 Each count states that the defendant
did sell by retail strong and sprituous Liquors and
wines Now, II the word strong is stricken dis
regarded there clearly enough left make the count
good So in regard TO the allegations that the liquor
sold 10 be drank the premises and WITHOUT license It
was unnecessary ate them but the statement does
not vi,ia,e the indictment The indictment
than Is necessary. but that njurc the defendant
The unnecessary matters be regarded surpusage
IL may perhaps become question on the trial whether
prosecutor should be limited in his proof under
the first count 10 the selling OF liquor FOR the SPECIFIC
purpose therein named
As regards the objection that the Indictment does
that The defendant is not within the exception
tanned in the proviso relating Physicians &c il is
sufficient 10 say that the exception IS not incorporated
into the eadctR part OF the section and therefore the
rule requires that the defendant If he is within the
cepuon. should set il up matter Of defence.
/; said also that the statute Of 1880 does not render
the selling of liquor without license ndiG5le offence
seems 10 be supposed that the statute Is satisfied BY
the penalty OF twenty-five dollars which may be recov
cred by the overseers OF the poor and that the 18th
section which declares that all offences against the pro-
visions OF that ritle shall be deemed msdemeanors ap
plies only 20 those violations which not liable 10
pecuniary penalty. An nsuperable objection TO this
construction OF the statute Is contained the decision
OF the Supreme Court in the OF The People VS..
Stavers IS Wen 81, IN which the precise question IS
decided
Whether however the word penalties used in the 9th
section OF the 1915 should be construed include
the misdemeanor only the penalties OF the
old statute is much serious and difficult cues.
non and if this objection applied all the counts in the
indictment should ieel disposed give the subject
careful examination than the short tle since the
argument has permitted But the objection does not
reach the third and fourth counts OF the indictment
which under the law of 1880 am inclined also Il,
present 10 think that the Legislature did intend by
the OF lSi5 weaken the force OF the existing stat
utes. The object seems rather 10 have been to
add force and efficiency 70 the old law, by strip
ping the Board OF Excise OF the discretionary power OF
granting licenses where the people desired IL and BY
making al retailing OF intoxicating liquors unlawful.
In regard the constuhonalty OF the law it is only
necessary remark that the law OF 1880 has frequently
been held be constitutional BY our Supreme Court
DEMO Rep. $40
Upon the whole think al tho counts IN the indct-
Tnent are good and that jud rnent be rendered
sssinst the defendant on the demurrer.
4 VOICE FROM FASuEIL HALL.-An immense
meeting was held in Faneuil Hall Boston on Thursday