The New York herald., 1877-12-11

Van NeEs, Walter A. Yates Daniel WaIbridge
George starr and Jacob Sulzbacner HIS Honor drst
called attention several violations of
forth IN the statute and then observed that the
subject of tho Excise law had Interested all citizens OF
late and the had been before tho Grand Jury
OF the OF Oyer ana Terminer he thought It his
duty to address them the subject. From tho large
number OF mpaints which had been brought before
the police magstrateG recently for violating the Excise
law he Judged they would ave work under
that during the present term In considering
these they should bear in mind that the really
guilty man vas the man who Intentionally violated
the law II might come TO their knowledge from The
evidence OF the witnesses before them tnat a large
number OF those arrested had in their possession
ceipts obtained from the Commissioners oil Excise
They should carefully examine into all the
stances attending the procuring OF these receipts and
how tar, If at all, the parties paying money
protected them. II lne dealers were told
could NO, protect them IN the sale OF liquor
then II would be the Grand Jury 10 say whether III
was or was not violation OF law. But u among tnem
were many intelligent aud conscientious dealers who
| from time TO time paid their money to the Excise
Commissioners, obtained receipts and went with
their business assuming whether right or wrong, that
they had quasi permission to SELL II they found such
TO be the case. It would be dihcrt for them to
| determine whether they wiilully violated the
| law IL would be we'll for them 10 con-
sider such cases as ths:-B, who is Conscientious
dealer sees that his neighbor A sells liquor unmo-
Tested Tor months the strength OF receipt IRON
the Board OF Excise, and thinks reasonable that he
also should obtaL similar receipt 1t would be Tor
the Grand Jury say whether justified in SELL
ing receipt seeing that II had apparently pro-
tected A. IL was his sincere desire, as It would be
THEIRS Excise law as rigidy enforced as any
other the statute book, but ike every law, in order
to be wholesome aud command dignity, respect and
observance 1t should be administered evenly ut all
times and 10 all persons, not by spasmodic efortA
LIQUOR DEALERS INDICTED.
The following lquor dealers were indicted by the
Grand Jury for violation OF the Excise law William
| Dugan No. ia Roosevelt street; George Know No.
street. and william Walsh. No. III Centre Market.
The defendants were arrested by Detectives O'Connor
and Field, ana held Tor trial IN the sum OF $500 each
| TRocH HABEAs
j AS already stated In the GERALD, Judge Van Hoe
sen of the Court OF Common Piens Saturday last,
upon application on ox-Judge Dttenhoeer. granted
| writ habeas corpus in the case OF August William
Troch. barxeeper IN the employ OF Karl olermann.
the proprietor OF hotel at No, 203 south
street rroch was among those arrested
while selling liquor at the bar OF the
others arrested by the police under similar clrcunl-
stances, duly marched before committing magis-
trate. Unusual Importance attaches 10 this case, II
having been selected u tcst case OF the entire
question The writ, as In cases OF this character,
was necessarily made returnabe before the Court OF
/ Oyer ana Termincr. On the opening o the latter
Court, yesterday morning ex-Judge Dttenhoeicr ap-
peared before Judge Brady, holding the Court,
writ. and q rs having been made re.
turnabe before that Court Judge Brady
before him he would be unable 70 hear the argument.
| and sent 1t before Judge Davis In Supreme Court,
Chambers, but in doing 80 added that IN case Judge
DAVIS could not attend TO the case he would hear II
pRocxEDINGs pEpoRE JUDGE DAVIS
| Judge Ditteuhoeier forthwith proceeded before
| Judge Davis, when Assistant District Attorney Bell
asked for postponement until Two O'Clock, in order
to give him time to examine the papers, This request
was granted, and at the appointed hour the court
room WAS filed, and included among its spectators
direct and indirect dealers IN liquor, including many
liqu0r dealers. Judge Dittenhoefer opened the
by stating the circumstances under which Troch was
arrested. He said that Karl Odermann, ia whose en-
| ploy Troch was applied tor his license on the 5th OF
last June, having died mis- bond aud tnat he paid $75
license ice, receiving therefor an Official receipt. He
/ stated, further, that Mr.. Odermann did not keep
house with three BEDS In IT, Tor the sake OF getting
around the law, but that his house contained twenty
beds for tho accommodation OF travellers; that
be had kept the house for years. that he had
always paid his license regularly and that since Juno
last he mad applied three times for his license but had
| each time been put of with the statement that he
| would be notified when his license was ready, and
that baving paid his money Ia good faith and in the
daily expectation OF receiving hts license no had con-
tinued 10 dispense liquors AT his bar.
| Having stated the above facts Judge Dittenhoefer
proceeded address the Court the law applicable
TO case. Holding In his hand printed copy OF the
act Of 1857 entitled IAN act to suppress intcm-
and sGae rna sas ,ss sale
being made he proceeded to comment upon It's
various provisions. He sand there was any authority
in that act empowering II In section lu3
by the terms OF which II was made the duty Of every
sheriff and policeman to arrest all persons found
actually engaged In violation Of the act In this
| he insisted that there no pretence OF warrant
having been issued The offence charged was selling
| commitment IN the not regular, but he did
not desire to take advantage OF any mere techncai-
ties, but would argue the question On broader prin-
| cplcs
NOT 4 CRIMINAL oYpExcK.
| The act charged, he contended, was in no sense
criminal offence, and therefore, there could be
criminal remedy. 1t Is not an offence at common law,
but statutory police regulation. Section IA provided
the act charged. The WORD fine is nowhere used in
the criminal remedies Alter drawing at some length
the distinction between forfeit and ne cited tho
opinion OF Chief Justice Marshall In the case OF the
| United States vs. Jacobs, sustaining the dstinc-
tion he had thus drawn. He insisted that
| in this case the act bore its construction, ,
In OF forfeiture the recovery being by civil pro-
ceedings and tine in the case OF conviction. la tho
OF the he showed what he claimed to be the
righteousness OF some Of IT'S provsions-as for IN
stance that II person calls for drink at any bar and
leaves personal property as pledge Tor It's pay
ment, such pledge IL VOID; that under no circum-
stances must liquor oe dispensed 70 an indian that
| It was equally reprehensble to sell on trust and
grave misdemeanor to give drink to thirsty pau
per. He also showed the power given to the Law and
order Society view, probably, Of Its object being
compulsory temperance.
kNTIRELY NEW QUESTION
He stated Iarthcr that tho present question had
never been raised in the courts before great cause
OF excitement hitherto hadbeen regard to the sun
| day law; but now policemen we're making general
arrests all days. They were arresting right aud
left Arresting men not only because they mad vo-
lated law, not Tor any fault OF theirs, not that
because they had not the emblem Of q license for
which they mad paid He cited several OF Johnson's
arrests were entirely Illegal But whether the posi-
ton taken BY him IN regard TO testing the right OF
correct or not, he surely believed that HIS Houor
would agree with him tnat the machinery devised by
the law for Its enforcement should not be converted
into trap. The reiator did everything that under
the law he could do 10 procure license IL has
been refused. It's delivery TO him has only been de-
layed. What, under the ances, he to do
LAW, BUT NOT JUSTICE
by stretching aud straining II 10 held TO bo law,
II certainly not justice 70 punish HIM under these
/ circumstances, and whe Your Honor has seen III TO
aniMadvert upon pubc Officials, Your Honor has
never yet dropped expression that punishment Is
due to VINO, like the reator, In good faith try TO
| comply with the law. Could not Your Honor, In the
extreme view, hold that Tor the purpose Of shielding
from criminal prosecution that these official receipts
shall be the form oil license. This leaves 1t with the
Commissioners to take away tho license at any time
| upon returning the money.
THE OPPOSING ARGUMENT.
Mr. Bell in response, said that the simple question
not one Of bad aith or good faith, out question
oil law and Its proper punish mont under the hiteenih
section Of tue act referred 10. The complaint alleges
that the relalor sold strong and spirtu0us liquors in
less tnap hvo gallons at q time without q
license. Tho question was whether tins was
criminal offence. rhe iacts were conceded and there
was not any pretence OF protection by license. He
considered It entirely Unnecessary to argue the mat
ter the entirely disposed Of by the decision
of the Court OF Appeals and the OF Foote The
Ha ipat. n. Int lho