
    People v. Andrews.
    (Supreme Court, General Term, Fifth Department.
    
    January 11, 1889.)
    1. Courts—Special Sessions—Surrender of Jurisdiction—Intoxicating Liquors.
    Code Grim. Proc. N. Y. § 56, provides that, “subject to the power of removal provided for in this chapter, courts of special sessions * * * have in the first instance exclusive jurisdiction to hear and determine ” a complaint for violation of the law relating to excise. During preliminary hearing on a complaint to determine whether a warrant should issue, the attorney for the people notified the justice that they would proceed no further before him, but would go before the grand jury; whereupon the justice sent the papers to the district attorney, and did nothing further, though no order of discontinuance was entered. Held to amount to a withdrawal and discontinuance of the case, surrendering the justice’s jurisdiction, and giving the grand jury jurisdiction of the complaint.
    ■2. Intoxicating Liquors—Illegal Sales—Clubs.
    Delivery by a steward of a club of liquors upon the order of a member, to a person not a member, and payment therefor by the member to the steward, does not constitute a sale of intoxicating liquors, within the New York statute forbidding such sale without a license.
    3. Same—Organization of Club—Province of Jury.
    If a club is fraudulently organized for the purpose of evading the excise laws, it would constitute no defense, but the question of fraud is for the jury. _
    Appeal from court of sessions, Cayuga county.
    The defendant, John Andrews, was indicted for selling intoxicating liquo" s to be drunk on the premises, without a license, and appeals from a judgment ■entered upon a verdict of a jury, and from an order denying a new trial.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      H. Greenfield, for appellant. A. P. Rich, Dist. Atty., for respondent.
   Haight, J.

Information was first filed before a justice of the peace, who •entered upon an examination of the persons designated in the information. Pending such examination, and before a warrant was issued, the attorneys for "the complaint notified the justice that they had concluded to proceed no further before him, but had decided to take the matter before the grand jury of the county. The justice thereupon did nothing further in the case, but sent .the papers to the district attorney. Subsequently the defendant was indicted by the grand jury of the county, and, upon the trial of the indictment, and .after the evidence was closed, the defendant asked the court to instruct the jury to acquit the defendant, or that his discharge be ordered, on the ground that it appears from the evidence that neither the grand jury that found the indictment nor the trial court had or has any jurisdiction of the subject-matter; the complaint having been previously made to a court of the special sessions of the county for the same offense charged in the indictment. The court •denied the requests, and exception was taken by the defendant.

The provision upon which this motion was based isas follows: “Subject to the power of removal provided for in this chapter, courts of special sessions, except in the city and county of Hew York and the city of Albany, have in the first instance exclusive jurisdiction to hear and determine charges ■of misdemeanors committed within their respective counties, as follows: * * * when a complaint is made to, or a warrant is issued by, a committing magistrate, for a violation of the laws relating to excise, and the regulation of taverns, inns, and hotels, or for unlawfully selling or giving to any Indian spirituous liquors or intoxicating drinks.” Code Grim. Proc. § 56, subd. 32. The provision is so clear and explicit as to require no interpretation. When .a complaint is made to a committing magistrate for á violation of the law relating to excise, the magistrate, subject to the power of removal provided for, obtains exclusive jurisdiction to hear and determine the charge. In this»case-complaint in writing was filed with the magistrate, and under the provisions, of this section he doubtless acquired exclusive jurisdiction of the case. But it appears that during the preliminary examination of the witnesses, for the purpose of determining whether a warrant should issue, the attorney of the complainant decided to take the matter before the grand jury, and so notified the justice. There was no order of discontinuance entered, but the justice appears to have acquiesced in the proposition to lay the matter before the grand jury, for he thereupon sent the papers to the district attorney of the county. We are consequently of the opinion that what took place amounted to the withdrawal and discontinuance of the case before the magistrate, and that he acquiesced and consented to such withdrawal and discontinuance, thus surrendering his jurisdiction of the case, and that .the grand jury and court of sessions were subsequently invested with jurisdiction. The defense was that the defendant was a steward of a social club; that the liquor sold by him was to members of the club. The court, in its charge to the jury, stated that it appeared from the evidence that friends of the members of the association sometimes visited the club-house, and that such friends had been delivered liquors upon the order of the members, which were paid for by the members; and then charged, in substance, that a delivery of liquors upon the order of a member to a party not a member, and the payment by the member to the steward, constitutes a sale of intoxicating liquors, within the provisions of the statute forbidding such sale without a license. Exception was taken by the defendant to this charge. It was the only question submitted to the jury, and the conviction must be deemed to have been made upon this theory. Social clubs for legitimate purposes are authorized by the statute, and, when approved by a justice of the supreme court of the district in which the club is located, a certificate may be filed, and the club incorporated. Under such organizations, the property of the club becomes the joint property of its members, and the furnishing of liquors or wines to the members by the steward is not a violation of the statute; and we do not understand that the entertaining of a guest or friend by a member, with wines or liquor, at the club-house, would be any more of a violation of the statute than it would if such entertainment was given at his private residence. Com. v. Swig, 145 Mass. 119, 13 N. E. Rep. 365. We are consequently of the opinion that the charge was erroneous, and that the exception thereto was well taken.

It is contended on the part of the district attorney that the club was a fraudulent concern, organized for the purpose of evading the excise law. The evidence tends to show that the defendant had previously been a saloon keeper, occupying the same premises; that he was refused a license, and thereupon this club was organized, and a portion of the premises in which the bar was located was leased to the club; that the defendant became the treasurer and steward of the club; that he has made all the purchases of liquors in the name of the club, and sold them to members, to be drank upon the premises, receiving the pay therefor as such steward. Members on joining the club were required to pay 50 cents, which was returned to them upon their withdrawal. The club was not incorporated. A constitution and by-laws were prepared and introduced in evidence, for the purpose of showing the organization of the club. While, as we have stated, the statute authorizes the formation of o clubs for legitimate purposes, it does not authorize the formation of a club for the purposes of evading the laws of the state; and if, as is claimed, this club was organized for such a purpose,—if it is merely a scheme and a device to continue the sale of strong and spirituous liquors without a license, thereby evading the laws relating to excise,—it operates as no defense or shield to those engaged in the traffic; and it is the duty of the court and jurors to disregard the scheme or device, and faithfully execute the law according to its true spirit and intent. The difficulty with this case is that the trial court did not*submit to the jury the question as to whether this organization was a ■scheme or a device to evade the excise law. On the contrary, the court in its charge appears to have assumed that it was a valid and legitimate organization, and that the intoxicating liquors sold by the defendant were the property of the ■club. The question as to whether the organization was effected for an illegal purpose was one which should have been submitted to and determined by the jury. For these reasons the judgment and conviction should be reversed, and a new trial ordered, and for that purpose the proceedings are remitted to the •court of sessions of Cayuga county. So ordered. All concur.  