
    People v. Harmon.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 19, 1888.)
    Intoxicating Liquors—Sunday Sales—Indictment—Joinder of Offenses.
    'An indictment under Laws N.'Y. 1857, c. 638, § 31, as amended by Laws 1873, c. 549, § 5, forbidding the. sale "of intoxicating liquors on Sunday, charged, in one count, a sale to E. L. and divers others on Sunday, February 26,1888. Another count charged that defendant gave away intoxicating liquors to divers persons on Sunday, March 18,1888. Meld, that the indictment did not fall within the exception of Code Grim. Proc. § 280, providing that the precise time at which the crime was committed need not be stated except when time is a material ingredient, and that the indictment charged two separate crimes, and was demurrable under section 278, which provides that the indictment must charge but one crime, and in one form.
    
      Appeal from court of sessions, Wyoming county.
    Mary Harmon was indicted for selling intoxicating liquors on Sunday. The court of sessions sustained a demurrer to the indictment, and the people appeal.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      E. M. Bartlett, Dist. Atty., for the People. O. P. Stockwell, for respondent.
   Haight, J.

The indictment contained two counts. The first charges that the defendant did, on Sunday the 26th day of February, in the year of our Lord 1888, at the town of Shéldon, in the county of Wyoming, willfully, unlawfully, and maliciously sell to one Emil Lambert and to divers citizens of this state, and to divers persons whose names are to the jurors unknown, intoxicating liquors, etc. The second etiunt • charges' that She- did, on Sunday, the 18th day of March, in the year of our Lord, 1888, at the town of Sheldon, in the county of Wyoming, willfully, unlawfully, and maliciously give away to .divers citizens of this state, and to divers persons whose names are to thejur.ors unknown, intoxicating liquors, etc. The defendant demurred upon the grpund that more than one crime is charged in the indictment. The court of sessions sustained the demurrer, and from the judgment entered thereon this appeal was taken.

The statute under which the defendant was indicted provides that “no-inn, tavern, or hotel keeper, or other person, shall sell or give away intoxicating liquors on Sunday * * * to any person whatever, as a beverage.” Laws 1857, c. 628, § 21, as amended by Laws 1873, c. 549, § 5. Section 280 of the Code of Criminal Procedure provides that “the precise time at which the crime was committed need not be stated in the indictment; but it may be-alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the crime.” In the case-under consideration it will be observed that the time is a material ingredient; for, under the statute already quoted, the selling or giving away of intoxicating liquors must be on Sunday, in order to be brought within' the prohibition of the statute. The first count, as we have seen, charges the selling on Sunday, the 26th day of February. The second count charges the giving away on Sunday, the 18th day of March,—two different and distinct Sundays. The first, count charges the sale to have been made to one Emil Lambert, and' to-divers citizens and persons of the state unknown. The second count charges the giving away to have been to divers citizens, and persons unknown, and does not charge it to have been made to Emil Lambert. It consequently appears to us—the time being a material ingredient in the crime—that two offenses are charged in the indictment; one, of selling intoxicating .liquors' on-Sunday, the 26th of February, 1888, to Emil Lambert, and to divers citizens and persons to the jurors unknown, and the other to have been committed on, Sunday, the 18tli day of' March, 1888, by the giving away of intoxicating liquors to divers citizens and persons whose names are unknown. People v. O'Donnell, 46 Hun, 358. Before the Code of Criminal Procedure, separate and distinct misdemeanors could be joined in the same indictment. People v. Dunn, 90 N. Y. 104-107. But section 278 of the Code of Criminal Procedure provides that “the indictment must charge but one crime, and in one form, except as in the next section provided.” The next section (279) provides that “the crime may be charged in separate counts -to have been committed in a different manner or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.” As we understand this provision, it would be competent to charge in separate counts that the same crime was committed in a different manner, or by different means. It would have been competent to have charged that the offense was committed on Sunday, the 26th of February, by the selling of intoxicating liquors, and to have charged in another count the same offense at the same time by giving away intoxicating liquors. And the provision to the effect that, “where the acts complained of may constitute different crimes, such crimes may be charged in separate counts,” we understand it to refer to crimes having different degrees, such as murder and manslaughter, where the criminal act may constitute different crimes. The act of selling intoxicating liquors on Sunday, the 26th day of February, could not constitute the offense of selling or giving away on any other Sunday; for such selling or giving away would be a separate and distinct offense. It follows that the demurrer was properly sustained by the court of sessions, and that the judgment should be affirmed, and the proceedings remitted to that court. So ordered.

Barker, P. J., and Bradley and Dwight, JJ., concurred.  