
    The People, Resp’ts, v. Harry Bradley, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1890.)
    
    1. Excise—Sale without licehse.
    Defendant was a steward of a social club which provided refreshments for its members and their friends living within a mile of the village, the members purchasing tickets which were punched as used. Defendant, as such steward, furnished lager beer to a member under this arrangement, the beer being in pint bottles. Held, that he was properly convicted under § 13 of the excise law of 1857.
    2. Same.
    It is immaterial, under that section, whether the liquor was paid for at the time, whether credit was given, or whether tlxe charge would be indicated by punching the ticket.
    3. Same.
    Whether the sales are made to citizens or aliens, residents or non-residents, is immaterial.
    4. Same.
    In the absence of a license of any sort, proof of the sale of liquor in quantities less than five gallons establishes the offense, and the fact that it appear that the beer was drank on the premises does not make the offense one under § 14 of the act.
    5. Same—Knowledge oe gbahd juby.
    Where the case proceeds to trial without preliminary objection, knowledge of the grand jury of facts stated in the indictment to be unknown is of no importance.
    Appeal from a judgment of conviction upon a trial in the Allegany court of sessions, and from an order denying a motion for a new trial.
    
      Rufus Scott, for app’lt; Charles II. Brown, for resp’ts.
   Corlett, J.

About the 15th day of August, 1889, the “ Bolivar Lotus Club” was incorporated. Section second provides: “The particular business and object of the society or club shall Be to equip and maintain suitaBle quarters, rooms and apartments, furnish the same with proper furniture, periodicals and athletic paraphernalia for the purpose of social intercourse, literary entertainments and enjoyment, and for the mutual benefit of the members thereof, and the place for conducting its business is to be in the village of Bolivar, Allegany county, N. Y.”

About the times hereinafter mentioned, the club contained about one hundred and ninety members. As an incident to the club, an arrangement was made by which a inember could buy a ticket for one dollar, the value of which he would receive in refreshments in the shape of sandwiches, beer, whiskey or cigars, as he might order. If he wished drinks at the rate of ten cents each, or five cents each, a hole would be punched in the ticket which would diminish its value to that extent, and if he took a friend with him, even though he was not a member, the friend’s drinks would also be punched, the rule being to the effect that a friend could not be treated who lived, more than a mile outside the village. About thirty-five of the members indulged in no drinks. The evidence tends to show that the balance did.

The defendant, Bradley, was a member of the club, and one o£ the stewards of this refreshment organization, and it was one of his duties to administer to the wants of members who came there and called for drinks and other refreshments, and to punch or cause to be punched holes to indicate the extent the dollars had been encroached upon. The stock of supplies would ordinarily be purchased in bulk, and when obtained would be disposed of as above indicated.

On the 25th day of December, 1889, the testimony tends to show, one Harter, a member of the club who had paid a dollar for refreshments, went there in company with some others, and asked the defendant Bradley to furnish them with lager beer, which he did; they drank it and left. Hone of them saw the ticket punched, but it was a part of Bradley’s business to keep track of it so as to keep the accounts square and have the ends meet. There is no question but that all the gentlemen belonging to the club, including the refreshment branch of it, were reputable and respectable, who did not intend to violate any statute or commit any criminal offense. The refreshment branch of the institution was an incident invented to increase the convenience and comfort of the club. It would sometimes so happen that a member would obtain credit or run in debt to the extent of two or three dollars and then pay up. But ordinarily the practice was to exact a dollar for a ticket and allow a member to get supplied on it until its exhaustion, when, if he wished, he could purchase another.

On the 9th day of January, 1890, the grand jury of Allegany county indicted the defendant and another for selling strong and spirituous liquors and wines in quantities less than five gallons, without a license. The charging part is as follows: “ That the said Harry Bradley and William - Hogan did on the 25th day of December, 1889, at the town of Bolivar, in the county of Allegany, aforesaid, unlawfully, willfully and maliciously sell and cause, suffer and permit to be sold, strong and spirituous liquors and wines in quantities less than five gallons at a time, by retail, to F. B. Harter, and to divers other citizens of this state, and to divers persons to the jury aforesaid unknown, and did then and there unlawfully deliver and cause the same to be delivered in pursuance of such sale' to said F. B. Harter, and to divers other citizens of this state and to divers persons to the jury aforesaid unknown, said strong and spirituous liquors and wines, to wit: One pint of brandy, one pint of rum, one pint of gin, one pint of whiskey, one pint of cordial, one pint of bitters, one pint of strong beer, one pint of lager beer, without having a license therefor or being authorized to do so by law, according to the form of the statute, etc.

It was conceded on the trial that the lager beer delivered and drank on the 25th day of December was intoxicating. Bradley and Hogan kept billiard rooms on the first floor of the building in which the Lotus Club rooms were.

The evidence tended to show that the beer drank at the time above stated was kept in bottles in a vault, and there was some evidence to the effect that they were pint bottles. The evidence tended to show that a sale was made on the occasion in question, and by the defendant. It is entirely immaterial whether the value of the liquor was paid for at the time, whether credit was given, or whether the charge would be indicated by punching holes in the ticket; the practical result would be the same. If any intention had existed to evade the law by any subterfuge, the scheme unfolded by the evidence would be a transparent evasion. The question as to whether the defendant had an interest in the liquor or was a mere agent, delivering and keeping account for the benefit of other people, is of no importance. People v. Andrews, 115 N. Y., 427-433; 26 N. Y. State Rep., 442.

The moment he furnished the beer to be drank, to be paid for in some form by one or more of those receiving it, the offense would be complete. An omission of that kind on the part of the }Jerson delivering the property would not change the nature of the transaction. A violation of the statute is an offence, even though it was the opinion of the person delivering the liquor that no law was violated.

Section 13 of chap. 628 of Laws of 1857 is as follows: “Whoever shall sell any strong or spirituous liquours or wines in quantities less than five gallons at a time without having a license therefor, granted as herein provided, shall forfeit fifty dollars for each offense.”

Section 14 is, “ Whoever shall sell any strong or spirituous liquors or wines to be drank in his house or shop, or any outhouse, yard or garden appertaining thereto, or shall suffer or permit any such liquors or wines sold by him, or under his direction or authority, to be drank in his house or shoj>, or in any outhouse, yard of garden thereto belonging, without having obtained a license therefor as an inn, tavern or hotel keeper, shall forfeit fifty dollars for each offense.”

A sale contrary to the provisions of the above sections is made a misdemeanor. It will be observed that no importance is attached to the persons to whom the sales are made, whether to citizens or aliens, residents or non-residents. That is unimportant and immaterial. The moment the sale is made to any one in quantities less than five gallons, the offense under section 13 is completo. So that the sale of this beer by this defendant was a violation oí that section, if the quantity did not exceed five gallons. It is very clear from the evidence that such was not the case; for it was furnished in pint bottles, and there is no color for the claim that the whole amount consumed on the occasion referred to, amounted to anything like five gallons.

But it is said that the moment it appeared that the sale was made to be drank upon the premises, that it was not a violation of § 13, but of § 14. A moment’s consideration will show that this claim is without foundation. Under the excise law above referred to, a storekeeper could sell, but not to be drank upon the premises, and where it appeared that one had a storekeeper’s license and sold liquors, no offense would be proved, nor could any conviction be had, unless the indictment alleged not only a sale, but, also, that the liquors were to be drank upon the premises, and the people’s case would fail as soon as the defendant proved a storekeeper’s license, unless the indictment alleged and the proof showed that the liquor was to be drank upon the premises. This is illustrated in People v. Buffum, 27 Hun, 216, and Huffstater v. People, 5 id., 23.

But in the absence of a license of any sort, as was the case here, proof of sale in quantities less than five gallons established the offense. And the fact that it appeared that the beer was drank upon the premises is entirely immaterial. It devolved on the defendant to prove license. 1 Archbold’s Criminal Practice, 360; Potter v. Deyo, 19 Wend., 361; Jefferson v. People, 101 N. Y., 19; Smith v. Joyce, 12 Barb., 26.

Section 338 of the Code of Criminal Procedure does not change the rule. The indictment, therefore, alleged an offense complete within both sections. People v. Charbineau, 115 N. Y., 437; 26 N. Y. State Rep., 490.

But it is said by the learned counsel for the appellant that the indictment was false in alleging that the sales were to citizens and persons unknown, when, in fact, they were known. It is not seen how this is important. The offense is not made to depend upon any such question. If the indictment in the above respects was false, and the defendant might be prejudiced or misled, it may be that a motion might have been made to quash the indictment; but when, without preliminary objection, the case proceeds to trial, the knowledge of the grand jury is of no importance.

It is also urged on the part of the learned counsel for the appellant that there was no proof of citizenship. If that fact were an element in the definition of the offense, or at all material, it. would need to be proved as well as alleged. But as already stated, the offense was complete upon the proving a sale without showing that the purchaser was a citizen or alien. This is entirely unlike that class of cases which are to the effect that where the indictment alleges the stealing of a white heifer, and the proof shows it was a black one, there could Le no conviction. That would bo a case of a fatal variance. In the case at bar there was no variance; an offense was shown and the allegations not proved were entirely immaterial. This was always the rule

in Barbour’s Criminal Treatise, pages 278 and 279, it is thus stated: “ Every fact and circumstance which is not a necessary ingredient in the offense may be rejected as surplusage and need not be proved at the trial.” So here, although a sale to citizens is alleged, it is entirely immaterial whether the purchaser was a citizen or not.

The learned counsel for the appellant, in his exhaustive brief and able argument, fails to show any substantial reasons for reversal. A careful examination of all the evidence and the charge of the learned judge presiding at the trial fails to show any errors prejudicial to the defendant.

The question of the moral turpitude of the defendant, or the extent of punishment which be deserves, is with the trial court.

The conviction must be affirmed.

Dwight, P. J., and Macomber, J., concur.  