
    Supreme Court—Appellate Division—Fourth Department.
    November, 1905.
    THE PEOPLE v. WILLIAM A. MYERS
    
    (109 App. Div. 143.)
    Liquor Tax Law—Form of Indictment Not Necessary to Allege1 Kind of Liquor Sold.
    An indictment, charging a violation of section 31 of the Liquor Tax Law, which states that the defendant sold “certain liquors in quantities less than five gallons at a time ” against the form of the statute, etc., is good; and the indictment need hot allege the kind or quantities of liquor sold, as the statute itself defines the term “ liquors.”
    Appeal by the plaintiff, the People of the State of Hew York, from a judgment and order of the County Court of Wayne county in favor of the defendant, entered in the office of the clerk of the county of Wayne on the 11th day of September, 1905, sustaining the defendant’s demurrer to an. indictment.
    Charles T. Ennis, for the appellant.
    George Raines and De L. Stow, for the respondent.
    
      
      
        N. B.—This opinion is important. The Appellate Division followed it, and decided four other cases upon the authority of this Myers opinion. See memoranda in the cases of People v. Walsh, Thompson, Couse and Squires, all reported in 110 App. Div. 922.
      Moreover, an appeal was taken in the Myers case. The order of the Appellate Division was affirmed, without opinion: Concur: Cullen, Ch. J., O’Brien, Haight, Vann and Werner, JJ. Dissenting: Willard Bartlett, J. Not sitting: Hiscock, J. (185 N. Y. 558.)
    
   Hash, J.:

The indictment accuses William A. Myers of the.crime of a misdemeanor, to wit, a violation of section 31 of the Liqu'or Tax Law of the State of New York, committed as follows: “ The said William A. Myers, prior to the date hereof, and on or about the ninth day (of) November, in the year of our Lord one thousand nine hundred and four (1904), at town of Galen in the county of Wayne and State of New York, with force and arms, and without having paid a tax as provided in section eleven of said Liquor Tax Law, and obtained and posted the liquor tax certificate as provided in said law, unlawfully and wilfully did sell certain liquors in quantities less than five wine gallons at a time to Aaron Rhine1-, hart and Edward A. Leonard, and to divers other persons to the grand jurors aforesaid unknown, and did then and there deliver and cause to be delivered in pursuance of such sale to the said Aaron Rhinehart and Edward A. Leonard, and to the said divers persons to the grand jurors aforesaid unknown, said liquors, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.”

The Liquor Tax Law (Laws of 1896, chap. 112, § 2, as amd. by. Laws of 1903, chap. 486) defines the term “ liquors,” as used in the act, to include and mean all distilled or rectified spirits, wine, fermented and malt liquors, and states that a sale of less than five wine gallons shall be “ trafficking in liquors ” within the provisions of the act.

Section 31 -of said statute (as amd. by Laws of 1903, chap. 486) provides that it shall not be lawful for any person wbn has not paid a tax and posted the liquor tax certificate provided by the act to sell, etc., liquors in any quantity less than five wine gallons at a time, nor, without having paid such tax and complied with the provisions of the act, sell, etc., liquor in any quantity whatever, any part of which is to be drunk on the premises of such vendor.

The statute defines the term liquors as used in the act to include and mean all distilled and rectified spirits, etc., and makes it unlawful for any person who has not complied with the provisions of the act to sell, etc., liquors in quantities less than five wine gallons at a time.

The indictment charges the defendant with having sold, in violation of section 31 of the act, certain liquors. It follows the language of the act. To have charged that the liquors alleged to have been sold were distilled or rectified spirits, wine, fermented and malt liquors,” would not have any more clearly defined or described the kind of liquors alleged to have been sold. That is done by the provisions of the statute. The definition excludes from the meaning of the term “ liquors,” as used in the statute and in the indictment, any but the kind of liquors, the sale of which is made unlawful, to wit, distilled or rectified spirits, wine, fermented and malt liquors.

“ An indictment for a statutory misdemeanor, which charges the facts constituting the crime in the words of the statute, and contains averments as to time, place, person and other circumstances to identify the particular transaction is good.” (People v. West, 106 N. Y. 293; 6 N. Y. Crim. 382.)

It is urged that it was necessary to allege the kinds and quantities of liquors sold to show that they were the kind of liquors included in the generic term liquors ” in section 2 of the Liquor Tax Law, also1 to give defendant notice of the facts of the charge and to plead it against future prosecution.

As already suggested, the generic term liquors ” is for the purposes of the statute given to “ all distilled or rectified spirits, wine, fermented and malt liquors,” and denotes only the kind or sort of liquors the sale of which is unlawful when made in violation of the provisions of the statute.

To have alleged, as in the usual form of indictment under the former Excise Law (Laws of 1892, chap. 401, as amd.), that defendant sold one gill of rum, one gill of brandy, one gill of whiskey, etc., under which form of indictment proof of the sale of any one of the kind of liquors, and in any quantity less than five gallons, was permitted, would not have made the pleadings more definite and certain. The "time when, the place where and the names of the persons to whom the liquors were sold, gave the defendant the required notice of the facts of the charge upon which to plead against a future prosecution.

The judgment and order should be reversed and the demurrer to the indictment overruled, with leave to the defendant to plead to the indictment.

All concurred.

Judgment and order reversed and demurrer overruled, with leave to the defendant to plead to the indictment.  