
    The People of the State of New York, Appellant, v. Joseph Graceffo, Respondent.
    Fourth Department,
    March 22, 1911.
    Intoxicating liquors — opening'door to saloon on Sunday — pleading — indictment, when sufficient — arrest of judgment.
    An indictment charging a violation of subdivision c of section 30 of the Liquor Tax Law, which prohibits any person from opening or leaving unlocked the entrance to a saloon during the hours when the sale of liquor is forbidden by law, which states that the defendant caused the entrance doors of a saloon to he open and unlocked on Sunday, “and at the place aforesaid were certain * * * liquors which were then and there sold and kept on sale prior to and on said day by said defendant,” and another person named, sufficiently sets forth that the defendant had a pecuniary interest in the business so as to charge him as a holder of the liquor tax certificate and make the offense indictable. Hence, the County Court has jurisdiction to try the defendant under such indictment.
    A motion in arrest of judgment can be made only upon the ground that the court did not have jurisdiction of the subject of the indictment, or because the facts stated do not constitute a crime;
    Appeal by the plaintiff, The People of the State of New York, from an order of the County Court of the county of Cayuga, entered in the office of the clerk of said county on the 28tli day of December, 1910, arresting judgment.
    
      Albert H. Clark, Assistant District Attorney, and Robert J. Burritt, District Attorney, for the appellant.
    
      Oscar Tryon, for the respondent.
   Spring, J.:

The grand jury of Cayuga county in May, 1910, found an indictment against the defendant, charging him with violating subdivision G of section 30 of the Liquor Tax Law (Consol. Laws, chap. 34; Laws of 1909, chap. 39). The trial of the indictment was transferred to the County Court, and after a verdict of guilty the court, upon motion of the defendant, granted an order in arrest of judgment on the ground that the County Court did not have jurisdiction over the subject of the indictment.

Section 30 of the Liquor Tax Law (Consol. Laws, chap. 34; Laws of 1909, chap. 39) prohibits “ any person,” whether he has paid the prescribed tax or not, from doing certain acts specifically set forth in separate subdivisions of the section. Among these is subdivision G, which reads as follows: “To have opened or unlocked any door or entrance from the street, alley, yard, hallway, room or adjoining premises to the room or rooms where any liquors are sold or kept for sale during the houi-s when the sale of liquors is forbidden, except when necessary for the egress or ingress of the person holding the liquor tax certificate authorizing the traffic in liquors at such place, or members of his family, or his servants, for purposes not forbidden by this chapter; or to admit to such room or rooms any other persons during hours when the sale of liquor is forbidden.” (Since re-enacted by Laws of 1910, chap. 494.)

There are two counts in the indictment against the respondent. The first charges him on a Sunday, at the time and place specified, with having “ unlawfully opened and caused to be opened,” following the language of the subdivision quoted, the door, which was the entrance from the street, to a room where liquors were sold and kept “by said defendant and one An tonino Graceffo.” The second count accuses the defendant with having “ admitted ” at the same time certain named persons into said room “ not being members of the family of Antonino Graceffo, who held the liquor tax certificate for said place,” and who were not of the family of the defendant or the servants of either him or the holder of the tax certificate.

As will be noted, the violation of the statute is made when “ any person” commits the acts constituting the offense, and he may not be the holder of the tax certificate or in his service. The question is, what court has jurisdiction of the offense. If the defendant is a stranger to the certificate holder he may come within the condemnation of subdivision G of section 30 and be guilty of a misdemeanor, only the offense may not be indictable. On the other hand, if he is interested in the business or in the service of the holder of the tax certificate, a severer punishment may be imposed and he may be indicted.

In the first count of the indictment the charge is that the defendant caused the entrance door to the saloon described to be opened and unlocked “ and at the place aforesaid were certain strong and spirituous liquors which were then and there sold and kept for sale prior to and on said day by said defendant and one Antonino Graceffo.” Keeping in mind that the sufficiency of the indictment is challenged as on a demurrer to it, we have the distinct averment that the defendant, with Antonino Graceffo, at the time and place the offense was alleged to have been committed, was keeping and selling liquors. To be sure, it does not allege whether as an agent of or as a principal with Antonino. It is of no importance in which capacity. The charge is distinct that he sold and kept the liquors, and that is a sufficient averment of his pecuniary interest in the business. "Within the scope of that allegation proof would have been competent to establish that he was in fact part owner of the liquors sold and kept in the saloon at that time. It is not claimed that if he was part owner of this business, or pecuniarily interested in it, he would not be chargeable as principal and would not be liable to indictment for the offense of which he was convicted.

The counsel for the respondent seems to be of the opinion that the defendant was the employee or agent of the certificate holder. There is no allegation of that import in the indictment. Section 35 of the Liquor Tax Law (as amd. by Laws of 1909, chap. 281), however, provides: “ Any clerk, agent, employee or servant shall be equally liable as principals for any violation of the provisions of this chapter.”

We are not passing upon the offense of a person who is not interested in the business or in the employee of the certificate holder. We simply hold that as the charge in the indictment is against the defendant as principal the offense was an indictable one.

The motion in arrest" of judgment was made and granted only on the ground that the court did “ not have jurisdiction over the subject of the indictment.” The only other ground upon which such a remedy can be taken is that the facts stated in the indictment do not constitute a crime. (Code Crim. Proc. §§ 331, 467; People v. Jackson, 191 N. Y. 293, 297.)

Neither the evidence nor the charge of the court is contained in the record. It may be that the case was submitted to the jury only on the second count of the indictment or that the evidence without objection showed facts covering the exception in subdivision G of section 30, so that the alleged vice in the indictment may have been cured. In view of these circumstances we do not feel justified in considering the sufficiency of the indictment on this appeal.

The order should be reversed.

All concurred.

Order reversed, and case remitted to County Court.  