
    The People of the State of New York, App’lts, v. Nicholas Krank, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Excise—Sale of liquor without a license—Admission of evidence.
    It is competent to prove a sale of liquor without a license on the 4th day of July under an indictment charging the sale on the 3d day of July. Time, in such case, is not the essence of the crime.
    2. Same—Indictment under Laws 1857, chap 628, § 13.
    The defendant was charged in the indictment with selling liquor without license on the 3d day of July, The proof showed that defendant had made only one sale, and that was on the 4th day day of July, which was a Sunday. Held, that the indictment was good under Laws 1857, chapter 628, section 13, although the offense was committed on a Sunday.
    3. Same—Sections 13 and 21, under said act, distinguished and explained—Effect of conviction or acquittal under either.
    The thirteenth section of said act prohibits anyone from selling at any time without a license. The twenty-first section of the same act, as originally passed, prohibited a sale on Sunday by any inn, tavern_ or hotel-keeper, even if he had a license; but this section was amended in 1873 so as to prohibit anyone from selling intoxicating liquors on Sunday whether he had a license to sell on other days or not. Held, that a person selling on Sunday without a license would be liable to indictment under either section, as the prosecution may elect, but a conviction or acquittal under either would be a bar to a prosecution under the other.
    4. Same—Parol evidence to explain record.
    The record in the other case would be conclusive upon proof that although the indictment charged a sale on the third, it was in fact sustained by proof of a sale on the fourth, and this evidence it would be competent uo give by paroi.
    5. Same—No double punishment possible—Sec. 677 of the Penal Code.
    Nor would a person be liable to double punishment by holding that section 13 remains in force as to one who sells on Sunday without a license, although by the same sale, he would be liable to indictment under section 21. And this is so, independently of section 677 of the Penal Code, which provides that an act which is made criminal under different provisions of law may be punished under any one of these provisions, but not under more than one.
    
      6. Practice—Exceptions at the trial.
    Exceptions taken at the trial should call attention of court and counsel to the very point in controversy, so that a decision may intelligently be given,
    Appeal from the judgment of the general term of the supreme court of the fifth department, reversing the judgment of the court of sessions for the county of Orleans.
    The indictment contained three counts: In the first it was charged that on the 3d day of July, 1886, the defendant sold strong and spirituous liquors, in quantity less than five gallons, to divers persons, to the grand jurors unknown, without having a license therefor.
    In the second count he is charged with having, on the same day sold strong and spirituous liquours, in quantity less than five gallons to one Henry "Vezie, and divers persons, to the grand jurors unknown, without having a license therefor.
    In the third count he is charged with having sold liquor on the same day, in quantity less than five gallons to one Henry Vezie, and divers persons to the grand jury unknown, without having a license therefor.
    In the first and second counts the sale is alleged to have been against the provisions of the “Act to suppress intemperance and regulate the sale of intoxicating liquors,’* passed April 16, 1857.
    In the third count the charge is general as being against the form of the statute in such case made and provided.
    The defendant was convicted and thereupon he was sentenced to be confined in the county jail for the period of thirty days and to pay a fine of $100. From this judgment and conviction the defendant appealed to the general term .of the supreme court of the fifth department, which reversed the judgment of the trial court, and thereupon the plaintiff appealed to this court.
    
      W. P. L. Stafford, district attorney, for app’lt; C. J. Church, for resp’t.
    
      
       Reversing 12 N. Y. State Rep., 845.
    
   Peckham, J.

The defendant was indicted for selling liquor without a license on the 3d day of July, 1886, which was Saturday. The proof upon which he was convicted showed a sale on Sunday. The indictment did not allege a sale on Sunday, and the defendant now argues that he could not properly be convicted of a, sale on the latter day under such indictment.

It is, to say the least, doubtful whether the point is raised by any valid objection and exception. Upon the trial, the people called a witness who testified that he was in the defendant’s place on the first Sunday in July, and he was then asked whether he drank anything there that day. This was objected to by counsel for defendant on the ground that it was incompetent, immaterial, and did not tend to prove the charge set up in the indictment. The ■objection was overruled and the defendant excepted. The witness then answered that he did ; that he asked for gin, which defendant gave him out of a bottle, and that he paid for it. The defendant’s counsel asked the court to charge that the offense must be proved to have been committed on the third day of July, which was refused, and the counsel for defendant excepted. The court said : “If you believe the witness Vezie, that this liquor was bought on the fourth of July, then you will find a verdict of guilty,’’ .and an exception was taken:

There is nothing in either of .these exceptions to call the attention of the court to the distinction between a sale on a week day and one on Sunday, but the. point that seems to have been taken was that it was incompetent to prove a sale on one day if the indictment charged a sale on another, or, in other words, that the proof of a sale must be confined to the very day laid in the indictment. This is manifestly untenable, as has frequently been decided, for in such case time is not of the essence of the crime. The purpose of an objection and exception is to call the attention of the court and counsel to the very point in controversy, so that a deci • sion may be made intelligently with reference to such question. It is very loose practice and ought not to be -commended.

But as the case is here, and objection has not been taken to its consideration upon the merits we will examine it upon the assumption that the point was properly raised upon the trial.

The question is not whether a conviction can be had of a sale on Sunday under the provisions of section 31 of the act of 1857, to suppress intemperance, etc., without alleging in the indictment that the sale was on such day, but whether under a general indictment alleging a sale of liquor without a license a conviction can be had under the provisions of section 13 of the same act, in case the proof shows that the sale did take place on Sunday. The thirteenth section is general in its application, and prohibits any one from selling at any time without a license. Section 21 in the original act prohibited a sale on Sunday by any inn, tavern or hotel keeper, even if he had a'license. But by amendment passed in 1873, section 21 was amended so as to prohibit any one from selling intoxicating liquors on Sunday, whether the person selling had a license to sell on other days or not.

The general term have held in this case that the amendment of 1873, as to selling on Sunday, has not only made a separate and distinct offense, but has so far altered the general law in that respect that it is no longer applicable to a sale on that day. The reason stated is that if the general law still remained applicable, a person who had no license and who sold on Sunday would by the same act render himself liable to be punished for two crimes growing out of exactly the same transaction, and such a construction of a statute should be avoided when possible. It is also stated that in this section (21) a sale by an unlicensed person is considered in a particular way when made on a particular day of the week, and a special punishment is imposed for that offense which does not apply to the violation of any other section of the act.

We do not think a person would be liable to double punishment by holding that section 13 remains in force as to one who sells bn Sunday without a license even though such a sale would render him liable to indictment and punishment under section 21 of the same act.

He would be liable to indictment under either section, but a conviction under either would be a bar to one under the other. By section 677 of the Penal Code “an act or omission which is made criminal and punishable in different ways by different provisions of law, may be punished under any one of those provisions, but not under more than one; and a conviction or acquittal under one bars a prosecution for the same act or omission under any other provision.” A conviction, therefore, of an individual selling liquors without a license upon proof of a sale on Sunday, would be a prosecution for the same sale under an indictment which charged the sale on Sunday and as coming under the twenty-first section.

In this case the indictment alleged a sale on the 3d of July and the proof was of a sale on the 4th, which was Sunday. A conviction under this indictment would be a bar to a prosecution for a sale on Sunday founded upon the same sale proved in the other case, and the record in the other case would be conclusive upon proof that although the indictment charged a sale on the 3d it was in fact sustained and the conviction obtained by proof of a sale on the 4th, which was Sunday. This evidence it w-ould be perfectly competent to give by paroi. As in the first case it was competent to prove a sale on the 4th under an indictment alleging a sale on the 3d because time was not material, so the same law which allows such a conviction also secures the defendant against another conviction for the same sale under another indictment which alleges it to have been committed on a different from that alleged in the first. Com. v. Dillane, 11 Gray, 67; Com. v. Carroll, 15 Gray, 409, 411.

As a defendant is thus freed from the perils of a double punishment for the same offense, there seems no good reason for holding that the twenty-first section of the statute operated as an exception introduced into the thirteenth section, which was thereby limited to, a sale by an unlicensed person on any day but Sunday, leaving the twenty-first section alone to deal with the case of a sale on .Sunday. The truth as we think is, that the twenty-first, section was not attempting to deal with an unlicensed person as such. It was a sale on Sunday that was to be prohibited, and by the amendment of 1873, the section applied to all persons, licensed or unlicensed, and the punishment was not a special one imposed upon an unlicensed person for a sale on Sunday, but both the licensed and the unlicensed persons are equally guilty under this section.

While, it is true, therefore, that a sale by an unlicensed person on Sunday is regarded as a higher offense than when it takes place on a week day, yet it is not because of the fact that such person is unlicensed, but because it is made on Sunday, and the fact that the seller is unlicensed is wholly immaterial, the offense being precisely the same in either case.

There is thus a separate and distinct offense made out by the twenty-first section. But we do not see that it in any way touches the provisions of the general section (thirteen) as to a sale by an unlicensed person. That offense is just as much committed by a sale on Sunday as on any other day, and the prosecutor may have his election for which offense he will prosecute, both being indictable, but when he has elected and has tried the defendant on one indictment, and the defendant has been acquitted or convicted thereon, then such acquittal or conviction is a bar to the prosecution of the other indictment.

For these reasons the judgment of the general term must be reversed and that of the general sessions affirmed.

All concur.  