New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-06-21
VERY IMPORTANT DECISIONS IN THE COURT
OF APPEALS
F,1rl The ADdny EreafEg Journal June 10
q -. rcr.nu N,.IrIInI-T L IrENsE INDIc 4


Belsn plaintiff agt The People defendants in error
Bet al indicted and convicted, at the OnondaSa
GeoeIai Se.'ions OF the otense OF selling strong ana
spirituous liquors srd wines without having any IL
Ger therefor under chap 6S of 1871 rec. - being
the act to suppress nte persuce and TO regulate the
aae of into xoatins liquors. The judgment was on APP
peal eflirmed by the Supreme Court at General Term
IN the Fifth District and the defendant appealed to
tbis Cour. The Judgment was affirmed. The opinion
Of the Court was pronounced BY Judge Pratt as ioi-
love:
BIZ tie Court-PRATT, Ut il well settled that
where en- &C. is prohibited by statute which is no.
crmirel at common law, and peraty Is imposed IN
the statute declaring III ,h prohibition. the act Is
not iIdctable The principle was distinctly recog-
n zed in tie case Of the People Smith, is Nend.,
81 Il is bssed upon the assumption that the Lsgis
la,ure, having Gxed :he penalty at tie same time OF
prohibiting toe act design that there should be no
other punishment But where the act was criminal
at common la" or already prohibited oy former s
statute the imposition Of a civil peniy. would not
take away the power TO punish by indictment. 30
when II statute 'sef contains any provisions show.
ing that the Legislature did not intend thai the civil
penalty should constitute the only punish ne Mt the
remedy by indictment would ot be taken away
Herce # statute direct that the prosecutor may
proceed in certain way, or otherwise, g. statue
give recovery by action uf debt, BILL palat, OF IN
by Indictment Arch. CT. Pr, |, ,, Hawk chap -,
sec. 4; Griffith vs. Wells , DEMO. ~.
In fine it is simply question OF Legislative intent
In looking therefore at the statute In question In lts
Wh
vioss Legislation upon the same subject can we iater
,Lo port Of the Legislature to conn9
the remedy for violation Of its provisions 10 selling
without license, to tie civil penalty therein imposec
or is the intention manifest that offender snail also
he punishable by indictment Cpon CAREFUL exacnl-
nation Of the statute, seems to lie TIA. the concu
sion is irresistible that the latter WAS the intention Of
tie Legislature.
II has been the policy If the State at least since the
year 1901 if not before make oferses agsins, the
excise laws punishsbe by ind ctment. by the seven-
s,rorg oucrs ard for regulating inns and tsyerns
al offerses against any OF the provisions OF tue act
were declared to be p.sdemesnoIs This provision has
been continued from that time DOWN to the enactment
therefore is againt the design the part Of the Leg
slsue n the restoration OF the License laws, To cnsrge
pflcv so ong adhered to. 1t should require clear
expression Of TIE legislative VIII 20 thar ehet 20 ast
IS tie Courts il holding that onense' aSelhs' tno'e
avs ale 10 loLger irc.cteble. .
The act under consideration, ~ s Ieaaing charac-
teristics is ve,y similar to the Old excise laws o0tn
in II. prohibitions snd ts penalties Cfder teose ls"s
the selling n Quantities less thsn hVe galols VIZ
prohib ted by penst &c in substantially the same form
a. in the pre-ent sct and the Supreme Cout IN ths
Gases OF 1ba People att Seyens 10 Wend., I'll and
TIE People at. Brown C6 WeLd., 56lb beld that
se.l'rg tie prohibited quantities without license were
Csuses against the provisions Of the ac anui 'ne'o
fore II iscene anors, and indlctsole. ....,
H. Therefore selling without license conel.Gt.1
Csnses sgsiLst the provi:ions OF tnT sct !. Is ui
cult to fad any good reason why siulsr vloia9u1 VI
the prelert statute should rot also be deemed oshss
against is provisions. Ard # they are 20 os Geelneu
eferses no one sill deny thst they sie ndlcLsoIe'
Second Tie whole scope and character OF the scI
show. nat tie term otshSe, when II Is useu ~
zion with these dlecucns which are Only apPhcaoe 10
misdeu esnors il rot used IN limited seuse, oui was
csed 70 i.foe all substantial Violations oi tne Pr'Fi
sit rs Of tie act. e.,;, oe;o.-o
By section 10, il il made the duty CT cel ,c ooel'
Therein enumerated 10 arrest al persons fOund ec-
"tcal'y srgsced in the comm, ZION oil any eyehNe w
vtelatIer OF this act ard forthwith 10 carry sucn
"uer.ou before any mag istrste, &C., VINO Is 10 Wy
them, CT hold them to bail, az for sIy Glnsi LIE
ueeror :risbe by Court of Special cesiion
Ina subsequent part of the same section, II Is nsoe
the dp.y of tie Magistrates to entertain any COM
piainfs n q relation Of Mis act nsce W Guy y
l1der oath, ard forthwith TO issee Na a.. are
cause such offender b be brought before hiC 70 CON-
ply vrh the provisoIs Of this seeon, &C. ere .ue
tenn used IT, " any complaint o. a.ri0talt0H u 90.
at a-i upon ;uch complaint oeIog naue q .a-i
{ 70 be issued. Tie term offet'e, "n.Sn .us
for tie nriscner insist OILY means taore 'ois'ous
Of the laws declared in the act tseif 10 De
ors Is pot used but the more geneIa fern t'o.aII0n
OF hi, act and the proceedings directed 70 De taken
by tie Magistrate, are suen Sc are SPPi'Ne''' -"
u ~, sso,ar 20 !, ia made the duty OF courts
"to irstruc: grand Jurors TO lnqul'e iao au ege..s
Against the provisions OF tbs set snu " P'eSSI' "a
offenders under tits act NOV : not " us as
sume that the L-gislsture would nave nseneo 50
csrefoIv in the A., these special directions to police
ofc.-s magistrates ard courts, order 10 secure eA'
traordinsry vigil srcs in the detection ana con'c'yn
Of offenders against the three OF Tour SoW
uninportapt provtsicns OF ine oc'' WINE NV
declare 10 be msdemearors .
Third. Tie ACT of selling without license ca.ea
IN thos sections Ct the statute imposing the penalties
cFenses. $4,000, A.. [. .h,.v., .h.I,
an sry st,onu or spitrcus liquors OF wines, IN
ousnttes ies,' &C. sball forfeit 80 tor cara 9Sc";
By s,ctoo IL. avhosver shs! ecu. to BE- drsax a's