
    Supreme Court—General Term—Third Department
    November, 1887.
    PEOPLE v. BRADT.
    Excise Law.—When Complaint Insufficient.—Evidence.
    Defendant was convicted on a complaint for selling “ one bottle of port wine” without having a license to sell strong and spirituous liquors or wines in quantities less than five gallons at a time. The complaint did not allege that only one bottle was sold, or that the quantity sold was less than five gallons. Held, that the averments of the complaint were insufficient to charge the offense under the statute (L. 1857, ch. 628, § 13) under which the complaint was drawn.
    Whether or not defendant was the owner of the premises was a disputed question in the case, defendant testifying that he had leased the premises to a certain person for a specified sum per week and his board, he to retain a room in the house for his personal occupancy. As to the leasing, he was corroborated by the alleged tenant, who had obtained the government license in her own name, and had also unsuccessfully applied for an excise license from the local authorities. The trial court, against the objection of defendant, compelled him to testify that over a year previous to the alleged offense defendant had been arrested for keeping a ^disorderly house in the same premises. The court received, against the objection of defendant, the evidence, 11 solely for the purpose of showing proprietorship. ” Held, error.
    Appeal by defendant Isaac Bradt from a judgment of the Court of Special Sessions of the City of Albany convicting him of selling liquor without a license, and sentencing him to the Albany County Penitentiary for six months.
    
      The defendant was arraigned and tried on a complaint which read as follows: “James Powell, being duly sworn, says, that he resides in Westerlo, County of Albany; that on the 5th day of October, 1887, at Nos. 66 and 68 Green Street, in said City of Albany, he did purchase as a beverage one bottle of port wine from one Susan Mitchell and Isaac Bradt, and did then and there drink the same and paid therefor the stun of one dollar and fifty cents; that said Susan Mitchell and Isaac Bradt had no license to sell strong and spirituous liquors, wines, ale, and beer as a beverage or otherwise in quantities less than five gallons at a time.”
    No objection to the form of complaint was made on the trial. Other facts appear in the opinion.
    
      John W Walsh and Edward J. Meegan, for defendant, appellant.
    
      Andrew Hamilton, assistant district attorney, for the people, respondents.
   Parker, J.

The averments in the complaint are insufficient to charge the offense of which the defendant was found guilty.

The charge it assumes to make against the defendant was based upon chapter 628, Laws of 1857, section 13. “ Whoever shall sell any strong or spirituous liquors or wines in quantities less than five gallons at a time without having a license therefor,” etc.

The complaint alleges a sale of one bottle of port wine, without alleging that only one bottle was sold, or that the quantity sold was less than five gallons.

Averring affirmatively that the defendant did sell one bottle, without some words negativing a larger quantity, is not bringing the case within the statutes. Bishop Stat. Crimes, § 1039.

It was error to compel the defendant to testify that he had been arrested for keeping a disorderly house in the premises in question over a year before.

It is well settled that the mere fact of an arrest based •upon some other charge than that for which a defendant is being tried is not admissible for the purpose of affecting his •credibility. People v. Crapo, 76 N. Y. 288.

The court, evidently bearing this rule in mind, in overruling the objection made by the defendant received the evidence “ solely for the purpose of showing proprietorship.”

To justify the ruling, therefore, it must appear to have been material evidence upon' the question of proprietorship.

The people proved that the defendant was the owner of the premises in which the bottle of port wine was alleged to have been sold; and was at the house every day and evening nearly, and at times was seen behind the bar.

The defendant testified that about the first of May previous to the alleged selling he leased the premises to one Lizzie Welch for fifteen dollars a week and his board, he to retain a room in the house for his personal occupancy. As to the leasing, he was fully corroborated by Lizzie Welch, who further proved that she had obtained a government license in her own name and had also applied for a license from the local authorities, and had deposited the sum of money usually required, but that no license had been granted her. It was claimed on the part of the people that the pretended leasing was a mere cover, the defendant being the actual proprietor; and it is argued that evidence of the arrest was proper in that it furnished a reason for his applying for a license in some other name than his own. I am unable to find anything in the evidence justifying such an argument.

Had the defendant been convicted a year before for the violation of the excise law, the statute would have prevented him from obtaining a license, and as every man is bound to know the law, it could have been argued fairly from the record of conviction and the statute that the defendant, knowing the law prevented him from obtaining a license in his own name, sought to obtain it for his own benefit by using- the name of another.

The mere arrest, however, for the violation of the excise law. not followed by a conviction, does not forfeit his license as a matter of law, neither does his arrest for the offense of keeping a disorderly house work a forfeiture of it.

It follows that defendant had no reason to apprehend that such arrest constituted a legal obstacle to his obtaining •a license. Then, unless facts were proven tending to show that it was the practice of the excise commissioners not to grant license in such cases, of which fact he knew—or that he had been refused on application because of such trouble ■—or that from information obtained he had been led to expect such a result, it is difficult to see what possible bearing that evidence can have upon the question of proprietorship.

There was no such evidence—not a word can be found in the case showing or tending to show, or from which it can even be argued, that the defendant apprehended difficulty in obtaining a license because of the arrest.

That fact, then, standing alone, as it does in this case, was not material to the issue, and the court was not justified in receiving that which it was clearly objectionable to receive .generally by simply limiting it to an issue concerning which it was not a material fact.

Judgment and conviction reversed, and defendant discharged.

Landoh, J„, concurs.

Fish, J., concurs upon the first ground stated, only.

Judgment of conviction and sentence reversed, and defendant discharged.  