
    Fourth Appellate Department,
    September, 1899.
    Reported. 43 App. Div. 623,
    The People of the State of New York, Respondent, against Edward J. Dillon, Appellant.
    Appeal from judgment of conviction, upon verdict of jury finding defendant guilty of violating Liquor Tax Law by wrongfully selling, exposing and giving away liquors on Sunday.
    
      Southworth & Gaffney, attorneys for defendant-appellant.
    The court erred in the admission of testimony as to the equipment of the interior bar-room where the violation was charged to have been committed. People v. Owens, 148 N. Y. 650-651.
    Facts which form the basis of the corpus delicti are to be proved either by direct evidence or by presumptive evidence of the most cogent and irresistible kind. American & Eng. Ency. of Law, vol. 7, p. 863; Best on Evidence, 2d vol. p. 751; State v. Flanagan, 26 W. Va. 122; State v. Davidson, 30 Vt. 385, 386.
    In criminal cases there must be proof that a crime has been committed; also that defendant committed the crime. Both can not be proved by circumstantial evidence; there must be direct evidence of one of the other. People v. Ruloff, 18 N. Y. 179; People v. Bennett, 49 N. Y. 143.
    In circumstantial evidence, “the evidence of facts and circumstances must be such as to exclude to a moral certainty, every hypothesis, but that of guilt of the offense imputed. People v. Owens, 148 N. Y. 648; People v. Ledwon, 153 N. Y. 18; People v. Fitzgerald, 156 N. Y. 253.
    A new trial should have been granted because of the improper statement made by the district attorney in summing up, that jury might presume defendant took out liquor tax certificate in his wife’s name because he had. been convicted. Criminal Code, sec. 393; People v. Rose, 22 State Reporter, 393; People v. Greenwall, 115 N. Y. 520-527.
    
      Timothy Curtin, district attorney, for the people.
    Evidence descriptive of the place, the condition of the room and the contents is proper. People v. Owens, 148 N. Y. 650.
    Under section 31 of the Liquor Tax Law the giving away or offering for sale of liquors on Sunday, except as allowed, is a violation of the law. People v. Murphy, 5 Parker’s Crim. Rep. 130; People v. Cramer, 22 App. Div. 189.
    Request in defendant’s fifth point that a new trial be granted because of improper statements, made by district attorney in summing up, is not well taken. Cole v. Fall Brook Coal Co., 159 N. Y. 63.
    Judgment should be given on appeal without regard to technical errors or defects. Code of Criminal Pro. sec. 542; People v. Shaver, 37 App. Div. 21-24; People v. Combs, 158. N. Y. 540.
   Judgment of conviction and order affirmed, and judgment to be entered and certified to Oneida County Court, with directions to proceed in accordance with section 547 of the Code of Criminal Procedure. All concurred.  