The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-06-08
THE LAGER BEBR QUESTION.
The District Attorneys Version Of the statute
What is necessary to Aver.


What IL Necessary TO Aver.
The argument in the case of Justus II.
schwab, who was before Judge Donohue on
Monday under writs OF habeas corpus and GER
tiorsri, was set for noon yesterday. Ex.Judge
Friedman said: THE Court 10 undoubtedly
aware that the police force of this city for tho
past few Sundays have been endeavorinQ to
rigdly enforce the Excise law, and In doing SO
have to use n mild term, created great excite
ment and aroused much popular indigna ION
Manv persons have been arrested for alleged
violati ons OF the Excise law, and many suits for
false imprisonment must follow. appear here
to day on behalf OF citizen qualified to vote
for President OF the United states, Tor mem
beers Of the national and state Legisl ,tures
and who has n voice Indirectly In tho selec-
tion OF tho Police Commissioners who are
enforcing the Excise law l sued out writ
OF habeas corpus, that instrument which Is so
dear to every American citlzsn, and that IL be-
forc your Honor. II IL understood that this Ia
to be test case, and I am pleased that tho dis
cussion is to be had before Judge who Is 30
universally esteemed as your Honor is. I have
no intention Of criticlsing the manner OF the ar
rest. The question Ia whether the matter al
legged against the prisoner constitutes a crime
aud Is an indctahe offence The statute of 1870
contains NJ express prov sions concerning the
sale OF Oever res on Sund Y. and the twenty
first section Of tue act of 1857 provides that no
inn, tavern, or hotel keeper snail sell or give
away intoxicating liquors on Sunday. The law
Of 1873 provides that no Inn, tavern. hotel
Keeper snail sell or give away wine or spirituous
liuuO from to O'Clock ~ the morning. The
law must be strictly construed, and IN favor OF
the liberty Of the prisoner. The language Is
sold or given away. What is the charge Sell
Ing lager beer. According to Chief Justice
Mansfield a case must be u strong one, indeed,
where Court must depart f1om the real mean
ing OF the words"
forward and. displaying Justice Morgan's COM
tnitment papers. said that the prisoner was ac-
cused Of selling lager beer on SUNDAY. lie
thought that he might pare bis Honor much v
the srgumen' by saying that the cOmmittm mt
paners are defective, and that the prisoner mus,
& erefore, he d ischirged. He wished to call the
attention of the Court to tho statute OF 1859,
where the selling Of beer on sunday Ia pro-
hibited.
TX Judge Friedman-There IL no such statute.
District Attorney PbeIps-l say there Ia.
Ell Judge Friedman-And / say there isn't.
shall not tie tlatly contrsdicted. say there Is,
ana Will show II To YOU.
SIR. PHELPS picked up e1-Judge Friedman's
Laws OF leO9 and read the section where
observation-disclosures and beer are mentioned.
There Is nothing SAID about lager beer, out
simply beer. Mr. Pneps referred to "A case ne-
fore Mr.. Justice Peckham, In which tue Court
held that It must be ayerred In the commit-
presume" said MIR. Phelps, addressing his
Honor, that that ruling holds good here"
judge Donohue-lt certainly does, and shall
SO hold.
Mr.. Pbolps continued that 1t was not inferred
that lager beer Is Intoxicating, that IL is beer
withid the meaning Of tue statute. Judge Peck
ham says that IL may tie proven that lager beer
mot ntoxieatinx. IL must be averred tnat IL is
Ex-Judae Friedman was much taken aback by
the words OF the District Attorney. and Mr.
Sen wac and the other lager beer sellers In tho
room were puzzled. he lawyer said The
graceful aud unconditional surrender OF the
District Attorney surprises me. Under ordinary
circumstances, l SHOULD be satisfied win the
victory hut should like to say someth ing upon
toe merit OF tue case, and offer some sugges-
tons, II the Court please"
Judge Donohue-It Is unnecessary. Let US
take recess
Ex-Judee Friedman-ButI would like TO say
something about tue confusion that must ar $50
u II Is maze necessary 10 prove that lager beer
Is Intoxicating. he Police Captain who locks
up the prisoner, and the Police Justice who
commits the prisoner may ind themselves bur
den with suits for false imprisonment.
The lawyer attempted To force the District
Attorney into further argument by saying. you
can't run away from ~. You must meet the
question:" but MIR. PHELPS had gathered UP his
white hat and was about to 20. Judge Donohue
said, The prisoner Is discharged" and while
sx-Judge friedman was fumbing with his law
journed. much TO the surprise of the lager beer
sellers. who gathered around the lawyer and
asked TO be enlightened. rney learned that IL
must be averred IN the commitment papers that
lager beer ID Intoxicating.