
    
      Supreme Court, General Term, fifth Department.
    October, 1888.
    PEOPLE v. HARMON.
    An Indictment Must Charge but One Crime.—Code Grim. Prog. § 278..—Sa.de oe Liquor on Sunday.
    An indictment containing two counts,—the first charging defendant with selling intoxicating liquor on Sunday, February 26, 1888, to a person named, and to divers citizens and persons unknown, • and the second count charging the giving away on Sunday, March 18, 1888, of intoxicating liquors to divers citizens of this State and to divers persons whose names are to the jurors unknown,—is bad on demurrer, as charging two different misdemeanors.
    Appeal by the People of the State of Hew York from the order of the Court of Sessions of Wyoming County, of May 4, 1888, sustaining a demurrer by defendant, Mary Harmon, to the indictment.
    
      The defendant was charged by an indictment containing two counts, with the crime of selling and giving away strong, spirituous and intoxicating liquor on Sunday, committed, as alleged in the first count, on February 26,1888, at Sheldon, in the County of Wyoming, selling to one Emile-Lambert and to divers citizens of this State and to divers-persons whose names are to the jurors unknown, intoxicating liquors (which liquors are specified in the ordinary form), and the second count charging that on March 18, 1888, at the Town of Sheldon, in the County of Wyoming,, defendant did give away to divers citizens of this State and to divers persons whose names are to the jurors unknown, certain specified intoxicating liquors.
    The defendant demurred to the indictment on the-grounds • First. That the indictment does not conform substantially to the requirements of sections 275 and 276 of the Code of Criminal Procedure; and, Second. That more than one crime is charged in the indictment, within the meaning of sections 278 and 279 of the Code of Criminal Procedure,
    
      O. P. Stochwett, for defendant, respondent.
    
      E. M. Bartlett, district attorney, for the people, appellant.
   Haight, J.

The indictment contained two counts. The first charges, that the defendant did, on Sunday, February 26, in the year of our Lord 1888. at the Town of Sheldon, in the County of Wyoming, willfully, unlawfully, and maliciously sell to one Emile Lambert, and to divers citizens of this State, and to divers persons whose names are to the jurors unknown, intoxicating liquors, etc. The second count charges that she did, on Sunday, March 18, 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 the jurors unknown, intoxica ting-liquors, etc. The defendant demurred upon the ground 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, February 26. The second count charges the giving away on Sunday, March 18—two different and distinct Sundays The first count charges the sale to have been made to one Emile 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 Emile 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, February 26,1888, to Emile Lambert, and to divers citizens and persons to the jurors unknown, and the other to have been committed on Sunday, March 18, 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, February 26, 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, February 26, 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.

Note.—There was another case, against William Harmon, in all respects similar to this one.  