
    The People, Resp’ts, v. Antoine Charbineau, App’lt.
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    Excise law — Indictment for selling liquor — Code Orim. Pro., § 278.
    An indictment in two counts, one of which charges defendant with selling liquor in quantities less than five gallons, and the other with selling; liquor to he drank upon his premises, is not demurrable as charging more than one crime in violation of Code Crim. Pro., § 278.
    
      Appeal from judgment entered upon order of supreme court, general term, third department, affirming judgment of conviction of court of sessions of Franklin county.
    
      John P. Kellas, for app’lt; H. G. Kilburn, dist. atty., for resp’ts.
   Earl, J.

The defendant was indicted by the grand jury of Franklin, county for selling spirituous liquors without a license. The indictment contains two counts, each alleging a sale of liquor on the same day, at the same place and to the same persons, without a license. The sole difference between the counts is that in the first the defendant is charged with selling liquor in quantities less than five gallons; and in-the second he is charged with selling liquor to be drank upon his premises. The defendant demurred to the indictment upon 'the grounds that more than one crime is charged therein, and that the facts stated therein do not constitute a crime.-

Section 278 of the Code of Criminal Procedure provides that an “ indictment must charge but one crime, and in one form, except as in the next section provided,” and that provides that “ the crime may be charged in separate counts to have been committed by different means; and when the acts complained of may constitute different crimes, such crimes may be charged in separate counts.”

The learned counsel for the defendant contends that the sale of spirituous liquors without a license in violation of §§ 13 and 14 of the act, chapter 628 of the Laws of 1857, is not a criminal offense, because the law does not declare it to be a crime. His ingenious argument would be entitled to some consideration if the question were an open one. But for more than thirty years the courts construing the act have held such sales to be crimes, and that construction, which is in harmony with all the previous laws upon the same subject, which is in accordance with the common understanding, and which has been acquiesced in by the legislature, should prevail. In Behan v. People, 17 N. Y., 516, this court, by a unanimous decision, held that the sale of spirituous liquors, without a license, in less quantities than five gallons at a time, though not among the offenses specially declared misdemeanors by the act of 1857, is punishable by indictment; and while that decision has been somewhat criticised, it has been uniformly followed and approved since. Hill v. People, 20 N. Y., 363; Foote v. People, 56 id., 321; Jefferson v. People, 101 id., 19; People v. Krank, 110 id., 488; 18 N. Y. State Rep., 418. We must, therefore, hold that the indictment charges a crime.

Does it charge more than one crime in violation of the section of the Code above quoted? We think not. The indictment charges but one act, and that is a sale without a license at a specified time and place to a person named. If there was a sale of less than five gallons of liquor to be drank upon the premises of the defendant, then it was a crime under both §§ 13 and 14 of the act of 1857; and hence under § 279 of the Code the act complained of may constitute different crimes, and therefore may be charged in separate counts.

The judgment should, therefore, be affirmed.

All concur.  