
    Third Appellate Department,
    June, 1905.
    Reported. 106 App. Div. 299.
    The People of the State of New York, Respondent, v. Henry Cox, Appellant.
    Liquor Tax Law—The word “liquor” includes malt rose—An indictment for its violation need not allege that the beverage was intoxicating—> Quaere, whether a County Court may be held by a county judge of another county where there is a special county judge.
    It was the deliberate intention and purpose of the Legislature, in passing the Liquor Tax Law (Laws of 1896, chap. 112), to omit therefrom the words “strong,” “spirituous” and “intoxicating,” and to include within the prohibitive parts of the act the traffic in all alcoholic beverages within the definition of “liquor” as contained in section 2 of said statute and to relieve the court from determining as a fact whether or not the liquor sold or given away is intoxicating.
    ■A beverage known as malt rose, which is made to imitate lager beer and has the same color, taste and appearance as lager beer and is bottled in the same way, and which contains from seventy-four hundredths of one per cent, to one and eighteen hundredths per cent, in volume of alcohol, eleven hundredths of one per cent, of which is put into the beverage and the remainder of which is the result of the fermentation of the concoction itself, is a “liquor” within the meaning of the Liquor Tax Law.
    An indictment, charging a sale of such beverage in violation of the provisions of the Liquor Tax Law, need not allege that such beverage is intoxicating and upon the trial of such an indictment, the court may properly charge the jury that the question for their determination is whether the defendant had trafficked in distilled and rectified spirits, wine, fermented and malt liquors, and that it is immaterial whether such liquors were intoxicating.
    Where the county judge of Lewis county, at the request of the county judge of St. Lawrence county, opened a term of the County Court of St. Lawrence county on October 17, 1904, and continued to hold said court pursuant to said request until October twenty-first, when the county judge of 'St. Lawrence county held said court and thereafter continued to do so, a person, who on October 25, 1904, was convicted in said County Court, after a trial before the county judge of St. Lawrence county, cannot successfully object to the jurisdiction of the court to try him.
    In such a case, the court having actually been held at the time of the trial in question by the county judge of St. Lawrence county, it is un'necessary to consider whether the constitutional provision that “a county judge of any county may hold county courts in any other county when requested by the judge of such other county,” applies where there is a special county judge in such other county who is capable of acting as county judge.
    Houghton, J„ dissented.
    
      Appeal by the defendant, Henry Cox, from a judgment of the County Court of St. Lawrence county in favor of the plaintiff entered in the office of the clerk of the county of St. Lawrence on the 28th day of November, 1904, upon the special verdict of a jury convicting the defendant of a violation of the Liquor Tax Law, and also from an order made during the trial denying the defendant’s motion for a new trial and in arrest of judgment,
    
      Lowen E. Ginn, for the appellant.
    
      Clarence ¡3. Ferris, for the respondent.
   Chase, J.:

The defendant was indicted for the crime of “unlawfully selling distilled and rectified spirits, wine, fermented and malt liquors, in quantities less than five wine gallons at a time in a town where the sale of liquors is prohibited, and without having obtained and posted a liquor tax certificate, and without having paid a tax therefor, contrary to the provisions of the Liquor Tax Law committed as follows:

“The said Henry Cox, on the 31st day of August, 1904, at the town of Potsdam, in this county, unlawfully did sell to one Owen O. Wiard, distilled and rectified spirits, wine, fermented and malt liquors in quantities less than five wine gallons at a time, to wit, two glasses of lager beer, without having , obtained and posted a liquor tax certificate, and without having paid a tax therefor, the said town of Potsdam then and there being a town in which a liquor tax certificate is prohibited as a result of a vote duly had in said town upon questions one, two and four, submitted under section 16 of the Liquor Tax Law, contrary to the provisions of the Liquor Tax Law.”

He was tried upon such indictment and the jury on evidence uncontradicted by the defendant, rendered a special verdict as follows: “The jury find that on the 31st day of August, 1904, the defendant, at the town of Potsdam, in this county, did sell and deliver to one Owen O. Wiard, one pint of a certain liquor called ‘Maltrose’; that said liquor then and there contained between seventy-four hundredths of one per cent, and one and eighteen hundredths per cent, in volume of alcohol; that said alcohol was formed therein by fermentation or added in the process of manufacture ; that he had at the time no liquor tax certificate and that the traffic in liquors in said town at said time was unlawful.”

The county judge holding said term of court on the application for judgment upon the special verdict, wrote an opinion in which, among other things, he said: “Philput, the manufacturer of the beverage sold by defendant under the name of malt rose testified that one of the ingredients was the lager beer known as ‘export-lager.’ Mr. Williams, the chemist, called by defendant, testified that on the assumption that the export beer used by Philput was an average sample of American export beer, the mixture resulting from the ingredients enumerated by Philput would contain eleven-hundredths of one per cent, in volume of alcohol. But the analyses of five samples of malt rose by Mr. Williams showed from seven tv-fourth hundredths of one per cent, to one and eighteen hundredths per cent, in volume of alcohol. The excess, amounting from seven to ten times the original quantity, can be accounted for only upon the theory of fermentation, or the intentional addition of alcohol in some form. The resultant was, therefore, to some degree at .least, fermented liquor or distilled spirits.

“The sole remaining question is the practical one, whether the quantity of alcohol is so small that the law ought to ignore it.

“It was in evidence, and is undisputed in this case, that Schlitz Milwaukee lager beer contains only two and forty-five hundredths per cent, of alcohol. Clearly a láger beer containing this amount of alcohol cannot be lawfully dealt in in a no-license town. If the contents of a bottle of this beer were to be diluted by two parts of water to one of beer, I have no doubt the resulting beverage would still be within the prohibition of the law, and yet it would contain a less percentage of alcohol than some of the samples of malt rose submitted to Mr. Williams. On the trial of this action Philput, the manufacturer, was unable to determine by inspection whether a bottle shown him was malt rose, manufactured by him, or lager beer. If the product is manufactured as a substitute for lager beer and sold either for the purpose of deceiving the purchaser or evading the law, the charity of the law should not be exercised toward it. In practically all of the trials in this court involving alleged violations of the Liquor Tax Law in the town of Potsdam since the last biennial town meeting, the last line of defense has been that in any event the defendant could not be guilty of any offense, because he only kept for sale or sold malt rose. I incline, therefore, to hold after considerable observation in other cases as well as in this, that the article in question is peculiarly intended to aid in the evasion and defeat of the law, and that its sale with the quantity of alcohol shown to be contained, is a violation of the Liquor Tax Law.” (People v. Cox, 45 Misc. Rep. 311.)

During the trial, and in his charge to the jury, the county judge held, and said in substance, that the question for determination was whether the defendant had trafficked in distilled and rectified spirits, wine, fermented and malt liquors, and that it was immaterial whether such liquors were intoxicating.

The excise acts passed by the Colonial Legislature relating to the sale of liquor in every instance referred, either in the title of the act or in the act itself, to “strong liquor” or “spirituous liquor,” or words of like meaning, and the first act of the Legislature of this State relating to excise (Laws of 1779, chap. 17), is entitled “An act to lay a duty of excise on strong liquors, to appropriate the moneys arising therefrom, and for the better regulation of inns and taverns within this State.”

The title of chapter 164 of the Laws of 1801 is “An act to lay a duty on strong liquors and for regulating inns and taverns.” The title of chapter 628 of the Laws of 1857 is “An act to suppress intemperance and to regulate the sale of intoxicating liquors.”

The title of chapter 175 of the Laws of 1870 is “an act regulating the sale of intoxicating liquors.”

The title of chapter 646 of the Laws of 1873 is “An act to suppress intemperance, pauperism and crime.”

The title of chapter 340 of the Laws of 1883 is “An act to regulate the sale of intoxicating liquors in cities having a population of over three hundred thousand inhabitants.”

The title of chapter 401 of the Laws of 1892 is “An act to revise and consolidate the laws regulating the sale of intoxicating liquors.”

The Liquor Tax Law (Laws of 1896, chap. 112) is entitled “An act in relation to the traffic in liquors, and for the taxation and regulation of the. same, and to provide for local option, constituting chapter twenty-nine of the general laws.” By section 2 of said act (as amd. by Laws of 1903, chap. 486) the term “ liquors ” as used in said act is defined as including and meaning all distilled or rectified spirits, wine, fermented and malt liquors. Under the several acts referred to passed prior to chapter 112 of the Laws of 1896, and also under the other general and special acts passed prior to said act of 1896 relating to excise, and the many acts amendatory thereof and supplementary thereto, it became a question of fact, in each case where a violation of an act was asserted, whether the liquor sold or given away was strong, spirituous or intoxicating, as the case might be. Unless the liquor was such that its strong, spirituous or intoxicating qualities were well known, it was necessary in each case to show affirmatively that it was strong, spirituous or intoxicating and thus within the prohibitive part of the act which it was claimed had been violated. It seems to have been the deliberate intention and purpose of the Legislature in passing the Liquor Tax Law to omit therefrom the words “strong,” “spirituous” and “intoxicating,” and to include within the prohibitive parts thereof the traffic in all alcoholic beverages within the definition of “ liquors ” as contained in such statute, and to relieve the court from determining ás a fact whether the liquor sold or given away is intoxicating. (Cullinan v. McGovern, opinion by Bischoff, J., N. Y. L. J., Feb. 27,1904.) In this case the People’s witnesses testify that the liquor sold by the defendant was lager beer. Lager beer is one of the best known of malted liquors. (Blatz v. Rohrbach, 116 N. Y. 455.) The jury found that the liquor sold by the defendant was malt rose, and the judgment is based on such finding. It appears from the evidence that malt rose is a beverage made to imitate lager beer, and that it has the same general color, taste and appearance as lager beer and that it is bottled in the same way. The jury has found that the liquor sold contained from seventy-four-hundredths to one and eighteen hundredths per cent of alcohol. In the testimony of the manufacturer he gives the ingredients used by him in the concoction thereof. One of the ingredients is export beer, which he testified is a fermented and malted liquor. The alcohol in the export beer used as one of the ingredients of malt rose is sufficient to make about eleven-hundredths of one per cent of alcohol in malt rose as bottled and sold. Among the other ingredients of malt rose are hop ale extract, consisting of the extract of hops, and of glucose to sweeten it, and also burned sugar and soapina. It appears that if these ingredients when mixed are exposed to the air that they will ferment, and as but eleven-hundredths of one per cent of alcohol was put into the malt rose in question the alcohol found therein, except such eleven-hundredths of one per cent, must have-been the result of the fermentation of the concoction itself. The alcohol in malt rose was consequently in part added thereto, and in part formed therein. If the alcohol contained in the malt rose as sold was produced therein by fermentation of the ingredients forming it the beverage comes within the plain terms of the statutory definition of liquor. A construction of the act that would exclude from its terms all beverages that had not of themselves been rectified, distilled, fermented or malted would deprive the act of much of its value as a police measure. We are nor willing to say that a beverage to which perchance is added a sufficient quantity of rectified or distilled spirits or alcohol contained in malt or fermented liquor equal to or in excess of liquors that are well known to be spirituous and intoxicating would not be withm the terms of the definition used in the act. (See Ency. Americana, article Fermentation.”) We do not mean to hold that to add a trace of rectified or distilled spirits or fermented or malt liquor to drugs or other liquids would necessarily constitute such compound a liquor within the terms of the Liquor Tax Law. We simply hold that malt rose as sold by the defendant in this case was within the prohibition of the Liquor Tax Law, and that the crime was sufficiently charged in the indictment without including therein an allegation that the liquor so sold was intoxicating.

The defendant also claims that his trial and conviction was - without legal sanction for the reason that the October term of the County Court of St. Lawrence county was appointed to be held on October seventeenth, and that on that day neither the county judge of St. Lawrence county nor the special county judge of said county was present, but the county judge of an adjoining county opened and held said court until October twenty-first, on which day the county judge of St. Lawrence county held said court and continued to hold said court until after the trial of the defendant which took place on October twenty-fifth. St. Lawrence county has a special county judge and the defendant insists that as it is not shown that the county judge and special county judge of said county were incapable of acting in this criminal action that the criminal side of the court could not be adjourned from day to day from October seventeenth to October twenty-first by any other county judge, and that consequently the trial and conviction of the defendant were without jurisdiction. The distinction between courts held by a county judge for the trial of civil and criminal actions was abolished by section 14 of article 6 of the Constitution of 1894. By said section of the Constitution, Courts of Sessions except in the county of New York were abolished from and after December 31, 1895, and the jurisdiction of Courts of Sessions except in the county of New York, was thereupon vested in the County Courts. It is also expressly provided by said section of the Constitution that “a county judge of any county may hold County Courts in any other county when requested by the judge of such other county.”

It appears that the county judge of Lewis county held the County Court in St. Lawrence county on October seventeenth at the request of the county judge of St. Lawrence county, and that he continued to hold said court at said request until October twenty-first. Whether, when there is a special county judge in a county capable of acting as a county judge, a county judge of a county other than that in which the court is held can at the request of the county judge of said county preside at the trial of a criminal action is not necessary for consideration.

The County Court is one court with civil and criminal jurisdiction, and such court was duly adjourned to October twenty-first. On and after that day, including the time when the defendant was tried and convicted, the court was actually in existence and held by the county judge of said county. The defendant’s objection to the jurisdiction of the court is without merit.

The judgment of conviction should be affirmed.

All concurred, except Houghton, J., dissenting in opinion.

Houghton, J. (dissenting) :

The defendant was indicted for selling lager beer. On the trial it transpired that he sold what is known as “malt rose.” The defendant offered to prove that this beverage was not intoxicating, and the trial court held and charged the jury that the statute was violated by the sale of malt or fermented liquors whether they were intoxicating or not. This was error for which the conviction should be reversed.

It is true that the Liquor Tax Law defines the “liquors,” the sale of which is prohibited without a liquor tax certificate, to mean and include “all distilled or rectified spirits, wine, fermented and malt liquors” and does not specifically say that they must be intoxicating; but I think it is the plain intent of the statute to prohibit and regulate the sale only of those liquors and beverages which may produce intoxication. In the case of People ex rel. Einsfeld v. Murray (149 N. Y. 367), the law was claimed to be unconstitutional principally because it was a simple tax law, and it was held that it was not a tax law but an excise law having for its primary purpose the regulation of the sale of liquors. Andrews, Ch. J., in his opinion specifically approved of what was said by the court below (4 App. Div. 185), and in addition said: “The character of the act of 1896 (Chap. 112), whether a tax law in a proper sense, or a law enacted under the police power, must be determined from its whole scope and tenor, and there can be no reasonable doubt, we think, that it is of the latter character It is radically different in some respects from the excise laws which it supersedes. But the changes are in the administration of the excise system and not in its essential character. * * The analogy between the law of 1896 and the former excise laws is strongly marked. There is the same necessity of a public certification of a right to engage in the traffic; the same restric tions and regulations intended to guard the traffic and reasonably protect the public against its acknowledged evils; the same principle of local option, and the act incorporates the principle of the Civil Damage Law. The new features of the system may prove to be efficient means of repression and regulation, such as the change in the administrative agencies, and the much larger tax upon the right to engage in the traffic.”

Under the former excise laws it is not questioned that a liquor must have been intoxicating to come within their prohibitions of sale.

The Legislature possesses the right to control and regulate the traffic in intoxicating liquors because of its sovereign police power which it may exercise to preserve the public morals or to promote the public safety or prosperity. (Metropolitan Board of Excise v. Barrie, 84 N. Y. 666.) It also has the right to pass health laws and to prohibit the sale of food or beverages deleterious to the public health, but it does not and could not prohibit the sale of pure food or harmless beverages which in no way affect the public morals or public safety -or public health.

If the Liquor Tax Law is to be given the narrow construction that the sale of all “fermented” or “malt liquors,” whether intoxicating or not, is prohibited, the invalid food known as kumiss, “a fermented, dietetic and sanitary drink made * * * from cowrs’ milk with sugar and yeast, and allowed to ferment until it becomes effervescent and slightly alcoholic” (Cent. Diet.), cannot be. sold without procuring a liquor tax certificate. Very many other harmless, medicinal and refreshing drinks would also come under the ban. The act should receive no such interpretation.

Although the question was not presented precisely as it now is in People v. Kastner (101 App. Div. 265), decided by this court, it seems to me the spirit of that decision is violated by the prevailing holding herein. There was no pertinency in reversing the judgment of conviction in that case unless the intoxicating properties of the beverage there sold (which was “malt rose”) was an element of the crime of selling liquor without a liquor tax certificate. .

It is very possible that the defendant violated the act, and that “malt rose” is another name for lager beer and a mere subterfuge to evade the law; but the jury should have been permitted to pass upon the question whether or not it was a subterfuge, and was lager beer, or was intoxicating.

The judgment of conviction should be reversed and a new trial granted.

Judgment of conviction affirmed.  