
    Fourth Appellate Department,
    June, 1902.
    Reported. 73 App. Div. 621.
    The People of the State of New York, Respondent, v. Franklin Fitch, Appellant.
    
      W. W. Waring, for appellant.
    The indictment is bad because it charges more than one crime, namely selling liquors, exposing and offering liquors for sale and giving away liquors. (People v. Kipfel, 160 N. Y. 371; People v. Haren, 35 Misc. 590; People v. Wilson, 151 N. Y. 403; People v. O’Donnell, 46 Hun, 358; People v. Dumar, 106 N. Y. 502; People ex rel. Foeligh v. Mastell, 94 N. Y. 179; People v. McGloin, 91 N. Y. 250.) It does not contain a “plain and'concise statement of the facts ” because it does not inform him as to which of the three offenses he is to be tried for. (People v. Starks, 136 N. Y. 541; People v. Bates, 61 App. Div. 559; People v. Adams, 17 Wend. 475; Hodgman v. People, 4 Denio, 235; People v. Tounsey, 5 Denio, 70; Osgood v. People, 39 N. Y. 449; People v. Huffman, 24 App. Div. 233.) Evidence'as to sales to persons not named in the indictment was inadmissible. (People v. Huffman, supra) and the error is not cured by directing the jury to disregard it. (Erben v. Lorrillard, 19 N. Y. 299; Arthur v. Griswold, 55 N. Y. 400.) The judgment must be reversed if defendant might have been injured by improper testimony. (Smith v. Isaacs, 58 N. Y. 680; Brague v. Lord, 67 N. Y. 495; O’Hagan v. Dillon, 76 N. Y. 170.) The proof must establish guilt beyond a reasonable doubt. (People v. Kelly, 11 App. Div. 499; People v. Burnett, 49 N. Y. 137; People v. Owens, 148 N. Y. 648; People v. Utter, 44 Barb. 170; People v. Fitzgerald, 156 N. Y. 253.)
    There being no proof that hop soda was a wine or was distilled or rectified or a liquor which the court would take judicial notice that it was distilled or rectified spirits, the People should have established that it was not only a fermented or malt liquor but that it was intoxicating.
    
      George W. Cole, District Attorney, for respondent.
    The indictment is good. (People v. Burns, 53 Hun, 274; People v. Harris, 28 N. Y. St. Rep. 297, affd. 123 N. Y. 70; Com
      
      monwealth v. Anthes, 12 Gray, 29; Commonwealth v. Busher, 14 Gray, 83; People v. Adams, 17 Wend. 475; People v. Huffman, 24 App. Div. 233.)
    Statutory designation of “ liquor ” in indictment is sufficient. (Com. v. Anthes, 12 Gray, 29; Com. v. Busher, 14 Gray, 83; Bishop’s New Crim. Proc. Vol. 1, § 358; McClain, on Criminal Law, Vol. 2, § 1237.) Proof that hop soda was a fermented or malt liquor was sufficient. Evidence that' it was intoxicating was proper to show it to be liquor of some sort.
    It was proper to show by "other witnesses other sales than the one charged (1) to show character of “ hop soda ” and (2) to show salés were made with consent and by authority of defendant. (People v. Schulman, 80 N. Y. 373; People v. Coleman, 58 N. Y. 555; People v. Molineux, 168 N. Y. 264.) Acts of bartender were within scope of his authority and bound the defendant. (Bishop on Stat. Crimes, § 1049; Davies v. Bemis, 40 N. Y. 453; People v. Hurlburt, 4 Denio, 133; V. C. C. Co. v. Murtaugh, 50 N. Y. 319; People v. Banney, 39 N. H. 206; Gathering v. State, 44 Misc. 343; Hall v. McKechnie, 22 Barb. 245; Vallance v. Everts, 3 Barb. 353; Matter of Lyman, 44 App. Div. 46.)
   Judgment of conviction affirmed and case remitted to County Court of Cattaraugus county pursuant "to section 547, Code of Criminal Procedure.

All concurred.  