
    The People of the State of New York, Resp’ts, v. John Andrews, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
      Filed January 11, 1889.)
    
    1. Criminal law—Jurisdiction—Code Grim. Pro., § 56, sued. 33.
    When a complaint is made to a committing magistrate, and during the preliminary examination of witnesses, the attorney of the complainant decides to take the matter before the grand jury, and so notified the justice, who acquiesced and sent the papers to the district attorney, Held, that what took place amounted to a withdrawal and discontinuance of the case before the justice, and that the grand jury and court of sessions were subsequently invested with jurisdiction.
    
      S. Same—Excise law—Sale op wines and liquors in clubs.
    Furnishing wines or liquors to members for their use and that of their guests and friends by a steward of a club, properly organized for a legitimate purpose, is not a violation of the statute forbidding the sale of intoxicating liquors without a license.
    Appeal from a judgment of the Cayuga court of sessions entered upon a verdict convicting the defendant of the ■Offense of selling strong and spirituous liquors to be drank ■on the premises without having a license, and from an ■order of that court denying a new trial herein.
    
      H. Greenfield, for app’lt; A. P. Rich, district attorney, for resp’ts.
   Haight, J.

Information was first filed before a justice of the peace, who entered upon an examination of the persons designated in the information. Pending such examination and before a warrant was issued the attorneys for the complainant notified the justice that they had concluded to proceed no, farther before him, but had decided to take the matter before the grand jury of the county. The justice thereupon did nothing further in the case, but thereupon sent the papers to the district attorney. Subsequently the defendant was indicted by the grand jury of the county, and upon the trial of the indictment and after the evidence was closed, the defendant asked the court to instruct the jury to acquit the defendant, or that his discharge be ordered on the ground that it appears from the evidence that neither the grand jury that found the indictment nor the trial court had or has any jurisdiction of the subject matter, the complaint having been previously made to a court of the special sessions of the county foi the same offense charged in the indictment. The court denied the requests, and exception was taken by the defendant.

The provision upon which this motion was based is as follows: Subject to the power of removal provided for in this chapter, courts of special sessions, excepting in the city and county of New York and the city of Albany have in the first instance exclusive jurisdiction to hear and deter-mine charges of misdemeanors committed within their respective counties as follows: * * ' * when a complaint is made to or a warrant is issued by a committing magistrate for a violation of the law relating to excise and the regulation of taverns, inns and hotels, or for unlawfully selling or giving to any Indian spirituous liquors or intoxicating drinks.’’ Code of Criminal Procedure, section 56, subdivision 32.

The provision is so clear and explicit as to require no interpretation. When a complaint is made to a committing magistrate for a violation of the law relating to excise the magistrate, subject to the power of removal provided for, obtains exclusive jurisdiction to hear and determine the charge.

In this case complaint in writing was filed with the magistrate, and under the provisions of this section he doubtless acquired exclusive jurisdiction of the case. But it appears that during the preliminary examination of the witnesses for the purpose of determining whether a warrant should issue, the attorney of the complainant decided to take the matter before the grand jury, and so notified the justice. There was no order of discontinuance entered, but the justice appears to have acquiesced in the proposition to lay the matter before the grand jury, for he thereupon sent the papers to the district attorney of the comity.

We are consequently of the opinion that what took place amounted to the withdrawal and discontinuance of the case before the magistrate, and that he acquiesced and consented to such withdrawal and discontinuance, thus surrendering his jurisdiction of the case, and that the grand jury and court of sessions were subsequently invested with jurisdiction.

The defense was that the defendant was a steward of a social club ; that the liquor sold by him was to members of the club. The court, in its charge to the jury, stated that it appeared from the evidence that friends of the members of the association sometimes visited the club house, and that such friends had been delivered liquors upon the order of the members, which was paid for by the members, and then charged in substance that a delivery of liquors upon the order of a member to a party not a member, and the payment by the member’ to the steward, constitutes a sale of intoxicating liquors within- the provisions of the statute forbidding such sale without a license. Exception was taken by the defendant to this charge. It was the only question submitted to the jury, and the conviction must be deemed to have been made upon this theory.

Social clubs for legitimate purposes are authorized by the statute, and when approved by a justice of the supreme court of the district, in which the club is located, a certificate may be filed and the club incorporated. Under such organizations the property of the club becomes the joint property of its members, and the furnishing of liquors or wines to the members by the steward is not a violation of the statute, and we do not understand that the entertaining of a guest or friend by a member with wines or liquor at the club house would be any more of a violation of the statute-than it would if such entertainment was given at his private residence. Commonwealth v. Ewig, 145 Mass., 119.

We are consequently of the opinion that the charge was erroneous and that the exception thereto was well taken.

It is contended on the part of the district attorney that the club was a fraudulent concern, organized for the purpose of evading the excise law. The evidence tends to show that the defendant had previously been a saloon keeper, occupying the same premises; that he was refused a license, and thereupon this club was organized and a portion of the premises in which the bar was located was leased to the club; that the defendant became the treasurer and steward of the club; that he has made all the purchases of -liquors in the name of the club, and sold them to members to be drank upon the premises, receiving the pay therefor as such steward. Members on joining the club were required to pay fifty cents, which was returned to them upon their withdrawal. The club was not incorporated. A constitution and by-laws were prepared and introduced in evidence for the purpose, of showing the organization of the club.

Whilst, as we have stated, the statute authorizes the formation of clubs for legitimate purposes it does not authorize the formation of a club for the purposes of evading the laws of the state, and if as is claimed, this club was organized for such purpose, if it is merely a scheme and a device to continue the sale of strong and spirituous liquors without a license, thereby evading the laws relating to excise, it operates as no defense or shield to those engaged in the traffic, and it is the duty of the court and jurors to disregard the scheme or device and faithfully execute the law according to its true spirit and intent.

The difficulty with this case is that the trial court did not submit to the jury the question as to whether this organization was a scheme or a device to evade the excise law. On the contrary, the court in its charge appears to have assumed that it was a valid and legitimate organization and that the intoxicating liquors sold by the defendant were the property of the club. The question as to whether the organization was effected for an illegal purpose was one which should have been submitted to ánd determined by the jury.

For these reasons the judgment should be reversed and a new trial ordered, and for that purpose the proceedings-are remitted to the court of sessions of Cayuga county. Barker, P. J., Bradley and Dwight, JJ., concur.  