
    The People of the State of New York, Resp’t, v. Isaac Bradt, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1887.)
    
    1. Pleading—Excise law—Laws 1857, chap. 628, § 13—Sufficiency of COMPLAINT.
    A complaint in an action to recover the penalty provided for by Laws 1857, chapter 628, section 13, which provides that “ Whoever shall sell any strong or spirituous liquors or wines, in quantities less than five gallons at a time, without having a license therefor,” etc., which alleges a sale of one bottle of port wine, without alleging that only one bottle was sold, or that the quantity sold was less than five gallons, is insufficient to charge the offense. Assuming the defendant did sell one bottle without some words negativing a larger quantity, is not bringing the case within the statute.
    2. Same—Evidence
    The mere fact of an arrest, based upon some other charge than that for which a defendant is being tried, is not admissible for the purpose of affecting his credibility.
    3 Same.
    A court is not justified in receiving that, which is clearly objectionable to receive generally, by simply limiting it to an issue, concerning which it was not a material fact.
    
      John W. Walsh and E. J. Meegan, for app’lt; Andrew Hamilton, assistant district attorney, for resp’t.
   _Parker,

The averments in the complaint are insuffi_cient to charge the offense of which the defendant was found guilty.

The charge it assumes to make against the defendant was based upon chapter 628, Laws 1851, section 13: “Whoever shall sell any strong or spirituous liquors or wines, in quantities less than five gallons at a time, without having a license therefor,” etc.

The complaint alleges a sale of one bottle of port wine, without alleging that only one bottle was sold, or that the quantity sold was less than five gallons.

Averring affirmatively that the defendant did sell one bottle without some words negativing a larger quantity, is not bringing the case within the statute. Bishop on Stat. Crimes, § 1039.

It was error to compel the defendant to testify that he had been arrested for keeping a disorderly house in the-premises in question over a year before.

It is well settled that the mere fact of an arrest based. upon some other charge than that for which a defendant is being tried is not admissible for the purpose of affecting, his credibility. The People v. Crapo 76 N. Y., 288.

The court, evidently bearing this rule in. mind, in overruling the objection made by the defendant, received the evidence “solely for the purpose of showing proprietorship.” >

To justify the ruling, therefore, it must appear to have-been material evidence upon the question of proprietorship.

The people proved that the defendant was the owner of . the premises in which the bottle of port wine- was alleged, to have been sold, and was at the house every day and evening, and at times was seen behind the bar.

The defendant testified that about the 1st of May previous to the alleged selling, he leased the premises to one Lizzie Welch for fifteen dollars a week, and his board, he to retain a room in the house for his personal occupancy. As to the leasing, he was fully corroborated by Lizzie Welch, who further found that she had obtained a government-license in her own name and had also applied for a license from the local authorities, and had deposited the sum of money usually required, but that no license had been granted her. It was claimed on the part of the people that the pretended leasing was a mere cover, the defendant-being the actual proprietor; and it is argued that evidence of the arrest was proper, in that it furnished a reason for his applying for a license in some other name than his-own.

I am unable to find anything in the evidence justifying' such an argument.

Had the defendant been convicted a year before for the-violation of the excise law, the statute would have prevented him from obtaining a license, and as every man is-bound to know the law, it could have been argued fairly from the record of conviction and the statute, that the defendant, knowing the law prevented him from obtaining a license in his own name, sought to obtain it for his benefit by using the name of another.

The mere arrest, however, for the violation of the excise-law, not followed by a conviction, does not forfeit his license as a matter of law, neither does his arrest for the offense of keeping a disorderly house make a forfeiture of it.

It follows that defendant had no reason to apprehend that such arrest constituted a legal obstacle to his obtaining a license. Then, unless facts were proven tending to show that it was the practice of the excise commissioners not to grant licenses in such cases, of which fact he knew, or that from information obtained he had been led to expect such a result, it is difficult to see what possible bearing that evidence can have upon the question of proprietorship. There was no such evidence. Not a word can be found in the case showing, or tending to show, or from which it can be argued that the defendant apprehended difficulty in obtaining a license because of the arrest.

That fact then, standing alone, as it does in this case, was not material to the issue, and the court was not justified in receiving that which it was clearly objectionable to receive generally by simply limiting it to an issue concerning which it was not a material fact.

Judgment and conviction reversed and defendant discharged.

Lardón, P. J., concurs; Fish, J., I concur upon the first ground stated.

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