The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-06
The New York tAqaor Law.
- rHn SELLING or LIQUOR WITHOUT LICENSE A
CRIMINAL OPFENCEf
fTrom the Rochester Union, July

ms quesnon came before Judge smith yesterday, In
e supreme Court room In the case OF the reope Against
Monroe McLane NcIAne charged win selling liquor
N the OF Perinton without license. On the supposi
nso thai this criminal offence, warrant was issued
brought before tho Justice Toe defendants counsel Aid
Wheeler OF this city, objected TO the proceedings before
created by the statute that the only remedy was by
evil sut OF the Commissioners of Excise for
Ne penalty This objection was o. erruled by the Justice,
who then proceeded Court OF Special Sessions 10 try
ne defendant found him guilt, and sentenced him to pay
dpe Of any oolas and stand committed the county jail
nssd the county il. Yesterday morning he sued out
writ OF habeas corpus before his Honor Judge Smith.
On the return OF the writ G. Buchsn and G. wh,eer
sebbins and Hart Strong. Esqs, for the people The
s rr in answer to the wrf returned that he held the
PRISONER by virtue OF writ, f which the following u
Ecroe Ooety $50 any constable Of said county. and to
At oSar Of Of I sse
% S o ona 81 9 ss s ss
Of he Jusc Of the Peace Of ad county for the trial q
isonas s.vns he sh day q
yhiIey The provsons OF the sudled act
Is SIS having
er.ior ne said homas ScLean upoo o.ng tended
.s saS E & Dsns
sa ~ w The ns Of the
be bed in and for said cnnn, but hs, he dd not give sa,h
Cont Of sUees Sessions and ~, .1es c.oScSo the
until be paid; and having paid,
S.rS Convey AMI he said mas %
snSea 10 receive Se sa Tso%ss Msssn in yoay csoa
a. nIS b. : ns S nns Be
Az Siyen under my hand and seal 81 Fer aforesaid
To return The prisoners counsel INJURED ana the
argument Judge Buchan for the prisoner said
thai the commitment purported to be issued by Court of
Special Sessions the conviction Of the prisoner
q Q criminal offence, and the offence was distinctly
stated to be ae selling Of liquor without license, and the
tha
h such selling crime for which the offender may be n
icted tried and convicted If it not then the whole
proceeding before the Justice was void and the commit
ment nuity. MisdemeaRors created either by the
common Law by statute 1t must be admitted all that
oom mon laws 20 by stauieH Tnat is the question
here In turning TO the Revised Statutes work Of Legs
Non prepred by lawyers well versed in the principles Of
criminal jurisprudence, they declared created INSIDE
either by well kno TO the comm la
petit larceny, assault and battery &C. By aripg
sha the doing OF certain act acts, shall be INSIDE
meanor punishable conviction by a tine imprson-
nept; aud on referring 70 the Revised Statutes
under the head of msdemeanors, where more than
hupdred different misdemeanors created, the uni
form language is used that the doing of such and such
acss shall be misdemeanor." This Is the mode in
which misdemeanor created by statute, and TO avoid
MI question this subject the revisers provided by
hon AZ, oe6 ID Revised statutes, that here the per
Cor nance Of act prohibited by any statute, and
penalty Or he VIOLATE of is imposed either
n The same section containing such prohibition, in any
sher section or statute the doing such act shall be deemed
. misdemeanor"
the 18th section of he present that
this conviction has been had whih section provides that
whoever fhall sell liquor in quantities less than i've gallons
without license shall forfeit fifty dollars and he 22d
ton provides that this penalty shall be sued for
vered III the Board of OF Excise
The selling lie nowhere declared by the TO q INSIDE
KeaDor and the 18th section Is understood prohibit
ing the act OF selling suppose must be- as penalty
inphes probibion "a j. X. 27s.) then by The 18Th sec
ton OF the Revised Statutes which have referred
section IS contains in itself penalty for the violation the
selling In not by that section made q miscemeapor
The 18th and 16h sections Of the Old excise law the
substantially the 18th and 18th sections Of this act
che old excse law contained section that all violations of
the law should be misde meanors The new excise law
repealed expressly by 49, all the provisions OF the
excise law The Ieg. l.ture may intended 70 make,
and perhaps thought they had made the selling without
hcense m,sdemesnor and thai they haa suc s IN aes
But is sufficient TO say that they have not done 60 Is
familiar principle Of criminal Jurisprudence that all penal
shall be strictly construed and are dot 10 make
. misdemesnor by Intend ment implication. In one
Il earliest STATE reports Game, $50 decided that
where penal statute be construed ss authorizing ei her
summary remedy action In the ordinary OF
proceeding, shall be taken TO mean the latter. Mr.
Buchan further remarked that the law was stringent
enough for The Of suppresng the sale
Of bquor II the officers entrusted with the enforce
men, OF the Law would do their duty, without the
remedy by Indictment For every ga,s OF liquor man
sod be Is liable 70 pay fine Of $780, and on the exccu
Issued the Judgment the defendant by section 81,
entitled 10 the benefit OF the limits so that toe
eOccrs have II their power effectusy by the civil
remedy 70 put stop 10 and punish all unlicensed selling
Mr. seeons Tor tae people argued thai vas not me-
order TO punish offences crminay In Of the people
xceps those where The statute creating the o1ence
dose prescribe the mode OF punishment The cases
erred 10 Revised Statutes by the counsel the
ther side those In which method OF punishment ~
rcscribed was therefore necessary thai the Leyisa-
ture should declare them ors in order to pins
them according the general proviions Of the Revised
Statutes in reference TO msdemeanors
I'd That the both created the offence and prescribed
the method OF punishment and not therefore neces
ry order TO bring the offence within the jurisdct OF
Coart Of spela Sessions that be declared Q INSIDE
meanor inlsmuch as section is confers . power the
court 10 punish all onen yes under the act and
Cd mai the act itself prercrbes double remedy for
punishment OF offences under H. the first being by
rest warrant on behalf OF the people, an, binding
the oyer aud Tcrmner Sessions tue party
elect trial before the Court Of Special Sessions the
second being by suit In the name OF the Board OF Comms
oners for the Of the penalty The 1r OF these
remedies IL clearly Indicated by section 90 which makes
the duty OF "Cours 70 instruct grand Jurors 70 tqure
INTO all offences against the provisions Of this act" nc
In section 10, which prohibits sale without license,
under which section The defendant convicted such
sale declared offence Section 10 makes the dly
people for the punishment Of all offences under this aci
Section ~ makes the duty OF grand jurors 10 inquire iao
al offences againsl The p,ovSlons OF tnis act "a,
criminal offence, 10 be punisheu IN the name u
The people Why then, should no. have the same mean
an The 2eh section declares ali offences under this
Bkdemesnors says ,hsl be the duty OF toe Co4r.s
instruct grand Jurors 70 inquire into al offences against
be provisions OF this act 6e (which offences hereby
declared 70 be msdemeanors" The term Offences oc
ours but once sec prior expresoo (which
fore, VI this last clause must refer W the term 'al O
fences previ Jusly mentioned In the section Hence
n effect reads al offences against the provisions or this
hereby declared 10 be misdemeGuors. For these
essous the Justice had jurisdiction hold Court OF spe
Gal Sessions for the trial OF the defendant andy the
nstrneut is legal.
Judge Buchan 10 reply stated that the offences vols
Of the mentioned In section IT, for which OF )ers
directed 70 Rrrcst. must mean the msdemesnors
sed by The statute cresied By o, where the
Commesoocrs are declared guilty or misdemeano- 10
granting licenses ocp,rary 70 the act; also py Is
m selling 10 minors INDIAN ao by sec 90 IN selling
10 rsupers; also BY sec. II 10 selling on Sundays
OF election DAYS and BY sec 20, for adulteraiing
bouor All these, and some ether acts, are declared
criminal offences and the offences referred 10 In section
sixteen thote which 10 be tried oy the Oyer I'D
1erminer Sessions Special sessous the violations
Ken ot That soOn only be hoee which are declared
by the ay " be misde esnors, ami riaole before such
courts The same remarks apply 10 section twenty nine
N reference 70 ours chgh grand juries inquire inc
oil offences against The act these OF such
violations Of he declared rnpdemeanors and tri
IA osssH ntrTtr A..