
    The People of the State of New York, Resp’t, v. Nicholas Krank, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 1888.)
    
    1. Excise—An indictment for selling liquor without a license will NOT SUSTAIN A CONVICTION FOR SELLING ON SUNDAY—LAWS 1857, CHAP. ’628, §§ 18, 31.
    The defendant was charged in the indictment with selling, on July 3, 1886, strong and spirituous liquors in quantity less than five gallons to divers persons, without having a license therefor. The proofs showed that the defendant was guilty of making one sale only and that it was made on the fourth of July, which last named day was Sunday. The offense charged was a violation of Laws 1857, chap. 628, § 13. Held, that the offense of selling on Sunday was not a violation of section 13, but of section 21 of said law. That the defendant should have been acquitted.
    2. Same—Effect of Laws 1873, chap. 549—Intention of Legislature.
    It was the intention of the legislature by the amendment of section 21 of chapter 628, Laws 1857, by Laws 1873, chapter 549, to inflict the greater punishment provided by that statute for every sale made by an unlicensed person on Sunday which would exempt the offender from the less r punishment imposed for the violation of section 13 of said law. The defendant could not be separately indicted for the same offense under each section.
    3. Statutes—Rules for construction of.
    The general rules for the construction of statutes are: General words in one clause may be restrained by particular words in a subsequent clause of the same statute. When a general intention is expressed, and the act also expressed a particular intention, the particular, is to be considered in the nature of an exception. If a particular thing be given or limited in the preceding parts of a statute, it shall not be taken away or altered by any subsequent words of the same statute.
    4. Same—Construction of statute.
    A statute will not be construed so as to subject a citizen to several indictments and trials for doing a single illegal act, and expose him to a double punishment unless the language used plainly and clearly supports such an intention.
    5. Same—When statutes construed to inflict two punishments for one OFFENSE.
    Where two or more laws are separately enacted, and having in view a separate and distinct purpose, and the offense which is created by the respective statutes may be committed by the doing of a single act, then the offender may be indicted by the same evidence.
    6. Same—When for court to determine.
    Where different offenses are created and defined by the same enactment, and a separate and distinct punishment is provided for each offense, and a single act may, by the strict letter of the statute constitute a violation of two or more of the provisions of the statute, then the courts must determine if such was the legislative intent, or whether the act prohibited was intended to be punished by one indictment and conviction, and if so, for which offense.
    
      Appeal from a 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 liquors, in quantity less than five gallons, to one Henry Vizie, 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 Vizie, 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 one hundred dollars. From the judgment this appeal was taken.
    
      C. J. Church, for app’lt; W. P. L. Stafford, district-attorney, for resp’t.
   Barker, J.

The proofs show, that the defendant was guilty of making one sale only, and that was to Henry Vizie, the person named in the second and third counts of the indictment as the person to whom the sale was made. The indictment charged that the same took place on the 3d of July, and the proof was, that it was made on the 4th of July, which last named day was Sunday.

The defendant makes the point, that, the variance between the time alleged and the time proved, as the day on which the offense was committed, is such as to amount to a failure of proof sustaining the charge set forth in the indictment. The rule relative to a variance as to time is not so strict as that. The cases all hold that, where the offense charged may have been committed on the day stated in the indictment as the day on which the offense took place, the variance may be disregarded when the day named in the indictment is, in fact, so near the day on which the offense was committed, as in this case. The rule on this subject is now regulated by statute, section 280, of the Code of Criminal Procedure, which is as follows: “ The precise time at which the crime was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the crime.” This was substantially the rule adopted by the courts before the enactment of the statute. People v. Ball, 42 Barb., 324.

We are cited to the case of The People v. Lavin (4 N. Y. Cr. Rep., 547) as an authority in support of the defendant’s contention. There the indictment was for selling spirituous liquors on Sunday, May 18, 1884, and the proof was that the sale took place on Sunday, April 20, 1884, and the court held that the variance was fatal, one of the judges dissenting. In that case, it was essential to support a conviction, that the people should prove that the offense took place on a Sunday. Although the proof established a sale on a Sunday, there is some reason in support of the argument, that the variance was fatal. It was essential, to constitute the offense for which the defendant was convicted in that case, that it should occur on a particular day in the week, and for that reason it was held, by a majority of the court, that the proofs should sustain the charge as to the very day mentioned in the indictment, and for that reason was brought within the exception mentioned in section 2S0 above quoted.

The offense charged in this case was for a violation of the thirteenth section of the act of 1857, regulating the sale of intoxicating liquors. The defendant contends that, as it appears that the sale which he made took place on Sunday, he should have been acquitted, as the indictment does not charge a violation of the twenty-first section, which forbids a sale of intoxicating liquors on Sunday by an inn, tavern, hotel keeper, or any other person.”

The argument is, that the sale proved constitutes a violation of that section of the statute, and as it took place on Sunday, it is not an offense against the thirteenth section, as it would have been if committed on any other day of the week. That an offense was committed against some one of the provisions of the act, is admitted.

If it is, as the defendant contends, an offense for selling on Sunday, as prohibited by the twenty-first section, and not a violation of the thirteenth section, then he should have been acquitted, as a violation of the latter section is not charged in the indictment. People v. Brown, 6 Parker’s Cr. Rep., 666.

The thirteenth section stands as it did at its enactment. The other section (21), at the time of the passage of the act was limited in its application to" inn, tavern and hotel keepers, who had a license duly granted, authorizing them to sell spirituous liquors. People v. Brown (supra). In 1873 (chap. 549), this section was amended so as to make its provisions general and applicable to all persons who should sell spirituous liquors on Sunday, whether they were

licensed to sell on any other days of the week or not. these sections are now to be read construed together, in connection with other provisions of the act, the same as if the amendment was embraced in the original act. To be more precise the defendant’s contention is, that as it is declared in section 21, that-whoever offends against the provisions of that section shall be guilty of a misdemeanor, and on conviction shall be punished as therein provided, that a sale made on Sunday is not an offense against the provisions of the thirteenth section and the offender is not subject to the punishment imposed by law for a violation of that section. The question is one simply of construction. A literal translation of the language used in each of the said sections would make the defendant’s act as proved an offense against the provisions of both, and subject him to two indictments and to two prosecutions. We must determine whether such was the legislative purpose. The question is, to find its solution by an application of the rules and maxims generally adopted for the purpose of ascertaining the mind of the makers. As has been frequently remarked by the courts, the statute appears to be carelessly drawn, and to have been adopted without a very careful consideration of its provisions, and the courts have experienced much difficulty in ascertaining the object and purpose of many of its provisions. The intention of the legislature on this question is not clearly and distinctly expressed, and is to be ascertained by the application of the general rules, adopted by the courts for the construction of statutes. General words in one clause may be restrained by particular words in a subsequent clause of the same statute. So when a general intention is expressed and the act, also, expressed a particular intention, the particular is to be considered in the nature of an exception. Also, if a particular thing be given or limited in the preceding parts of a statute, it shall not be taken away or altered by any subsequent words of the same statute. Dwarris 2, page 658; Churchill v. Crease, 5 Bing., 180; People v. Brown, 6 Parker’s Crim. Rep., 666.

The provision in section 13 is general in its application, and forbids the sale of any strong or spirituous liquors, in quantities less than five gallons at a time, without having a license therefor; and provides that the offender shall forfeit fifty dollars for each offense, and by the language used is made to apply to a sale made on any day of the week. In a subsequent section (21), a sale by an unlicensed person is again considered in a particular way, when made on a particular day of the week, and a special punishment imposed for that offense which does not apply to the violation of any other section of the act. It is plain, that the legislature, by the provisions of this section, intended to create, mark out and define a new offense, for doing an act previously prohibited by a general provision, and, as we think, to except the particular act from the operation of the previous section. This conclusion is supported by what must be conceded to be the general policy of the law making power of the state, as manifested in the history of legislation, not to subject a citizen to several indictments and trials for doing a single illegal act, and expose him to a double punishment. In the construction of statutes, where a question of this nature arises, it is the duty of the court to avoid a conclusion which would lead to such a result, unless the language used plainly and clearly supports such an intention. The only statute in existence making it illegal to sell liquor without a license on Sunday, or any other day of the week, is the general act of 1857, with its subsequent amendments. It is no disregard of the language used in section 13 to hold that when a sale is made on Sunday, by an unlicensed person, it is excepted from its provisions, and to declare that the offense falls within the provisions of the 21st section, which clearly defines the offense and provides for its punishment. It is obvious that the legislature regarded a sale of liquor on Sunday by an unlicensed person as a higher offense, to be punished with more severity than if committed on one of the secular days of the week. This seems the more conclusive, for the reason that the act contained no provision whatever, declaring the punishment which shall be imposed for a violation of the provisions of the 13th section, which, by its own terms, only imposes a penalty of fifty dollars for each offense.

It was held in the case of Foote v. The People (56 N. Y., 321), that the provisions of the twenty-ninth section declaring certain offenses to be misdemeanors, which might be punishable by imprisonment in a work house or jail for the period of three months and to pay a fine of $100, was applicable only to the offense of adulterating imported or other intoxicating liquors with poisonous or other deleterious drugs or mixtures, or for selling the same knowing them to be so adulterated; and that the offense of selling without a license, as provided hi section 18, was a misdemeanor, and was punishable only as prescribed by the general provision of the Revised Statutes for the punishment of misdemeanors, not otherwise provided for.

In the case of The People v. Brown (supra), it was held that section 21, before its amendment, applied only to inn and hotel keepers who had a license authorizing them to sell on other days of the week.

Thereafter the amendment of 1873 was enacted, which made the statute applicable to all persons, including _ those not licensed, and this, we think, signifies an intention to inflict the greater punishment provided by that statute for every sale made by an unlicensed person on Sunday, which, by the ordinary rule of construction, would exempt the offender from the lesser punishment imposed by theRe-vised Statutes for all misdemeanors not otherwise provided for.

. The learned district-attorney admits that the illegal sale made by the defendant comes within the provision of section 21, but he also contends that the same sale constitutes a violation of section 13, in which the provision is general,, prohibiting the sale without a license; and that the defendant may be separately indicted and punished for each offense, and cites us to several cases which he supposes supports his argument.

Where two or more laws áre separately enacted, each having in view a separate and distinct purpose, and the offense which is created by the respective statutes may be committed by the doings of a single act, then the offender may be indicted by the same evidence. This rule has been affirmed and followed in several Massachusetts cases. Commonwealth v. McCurdy., 109 Mass., 364; Commonwealth v. Trickey, 13 Allen, 539.

But where different offenses are created and defined by the same enactment, and a separate and distinct punishment is provided for each offense, and a single act may, by the strict letter of the statute, constitute a violation of two or more of the provisions of the statute, then a case is provided, in our opinion, for the courts to determine if such was the legislative intention, or whether the act prohibited was intended to be punished by one indictment and conviction, and, if so, for which offense.

The conviction and judgment should be reversed, and the proceedings remitted to the court of sessions for Orleans county.

Haight and Bradley, JJ., concur; Smith, P. J., not voting.  