
    The People, etc., App’lts, v. Mary Harmon, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Criminal law—Selling liquor on Sunday—Demurrer to indictment.
    The indictment contained two counts. The first charges the defendant with selling liquor to one Emil Lambert and other persons, to the jurors unknown, on Sunday, February 26, 1888. The second charges her with giving away liquor to divers persons, to the jury unknown, on Sunday, March 18, 1888. On demurrer to this indictment, on the ground that more than one crime was charged, the demurrer was sustained.
    
      % Same—In an indictment eor selling liquor on Sunday, time is a material ingredient—Code Crim. Pro., § 280.
    The statute provides that "no inn, tavern or hotel keeper, or other person, shall sell or give away intoxicating liquors on Sunday * * * to any person whatever as a beverage.” Laws 1857, chap. 628, § 21, as amended by Laws 1873, chap. 549, § 5. The Code Grim. Procedure,§ 280, provides ‘ • that 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.” Meld, that in this case the time is “ a material ingredient” in the crime, and the indictment must aver that the offense was committed on Sunday. As the first count charges the crime to have been the selling of liquor to one Emil Lambert and other persons, to the jury unknown, on Sunday, February twenty sixth, and as the second count charges the giving away of liquor to divers citizens and persons, to the jury unknown, on Sunday, March eighteenth, two distinct offences are charged. The act of selling or giving away liquor on Sunday, February twenty-sixth, could not constitute the offense of selling or giving away liquor on any other Sunday; such selling or giving away would be a separate and distinct offense.
    3. Same—When mat a crime be charged in separate counts—Code Grim. Pro., §§ 278, 279.
    Before the Code of Criminal Procedure separate and distinct misdemeanors could be joined in the same indictment; but section 278, Code Criminal Procedure, provides “that the indictment must charge but one crime and in one form, except as in the next section provided.” The next section (section 279) provides “that the crime may be charged in separate counts, to have been committed in a different manner or by different means, and where acts complained of may constitute different crimes, such crimes may be charged in separate counts.” Held, that it would have been competent under this statute to have charged that the offence was committed on Sunday, the twenty-sixth of February, by the selling of intoxicating liquors, and to have charged in another count the same «Sense at the same time by giving away‘intoxicating liquors; and the provision that “ where the acts complained of may constitute different crimes, such crimes may be charged in separate counts,” refers to crimes having different degrees, such as murder and manslaughter, where the criminal act may constitute different crimes.
    Appeal from, a judgment of the court of sessions of Wyoming county sustaining the defendant’s demurrer to an indictment.
    
      E. M. Bartlett, district attorney for people; O. P. Stockwell, for resp’t.
   Haight, J.

The indictment contained two counts. The first charges that the defendant did, on Sunday the 26th day of February, in the year of our Lord 1888, at the town of Sheldon, in the county of Wyoming, wilfully, unlawfully and maliciously sell to one Emil Lambert and to divers citizens of this state, and to divers persons whose names are to the jurors unknown, intoxicating liquors etc., The second count charges that she did, on Sunday the 18th day of March, in the year of our Lord 1888, at the town of Sheldon, in the county of Wyoming, wilfully, unlawfully and maliciously give away to divers citizens of this state and to divers persons whose names are to the jurors unknown, intoxicating liquors etc.,

The defendant demurred upon the ground that more than one crime is charged in the indictment. The court of sessions sustained the demurrer, and from the judgment entered thereon, this appeal was taken.

The statute under which the defendant was indicted provides that “no inn, tavern or hotel keeper or other person shall sell or give away intoxicating liquors on Sunday * * to any person whatever as a beverage.” Laws 1857, chap. 628, § 21, as amended by Laws of 1873, chap., 549, § 5.

Section 280 of the Code of Criminal Procedure provides that“ the precise time at which the crime was committed need not 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.”

In the case under consideration, it will be observed that the time is a material ingredient; for, under the statute already quoted, the selling or giving away of intoxicating liquors must be on Sunday in order to be brought within the prohibition of the statute. The first count, as we have seen, charges the selling on Sunday, the 26th day of February. The second count charges the giving away on Sunday, the 18th day of March; two different and distinct Sundays. The first count charges the sale to have been made to one Emil Lambert, and to divers citizens and persons of the state unknown. The second count charges the giving away to have been to divers citizens and persons unknown, and does not charge it to have been made to Emil Lambert. It consequently appears to us, the time being a material ingredient in the crime, that two offenses are charged in the indictment : one of selling intoxicating liquors on Sunday, the 26th of February, 1888, to Emil Lambert, and to divers citizens and persons to the jurors unknown ; and the other to have been committed on Sunday, the 18th day of March, 1888, by the giving away of intoxicating liquors to divers citizens and persons, whose names are unknown. The People v. O'Donnell, 15 N. Y. State Rep., 141.

Before the Code of Criminal Procedure, separate and distinct misdemeanors could be joined in the same indictment. The People v. Dunn, 90 N. Y., 104-107.

But section 278 of the Code of Criminal Procedure pro- . vides that “ the indictment must charge but one crime, and in one form, except as in the next section provided.” The next section (279) provides that “the crime maybe charged in separate counts to have been committed in a different manner or by different means ; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.”

As we understand this provision, it would be competent to charge in separate counts that the same crime was com•mitted in a different manner or by different means. It would have been competent to have charged that the offense was committed on Sunday, the 26th of February, by the selling of intoxicating liquors, and to have charged in another count the same offense at the same time by giving away intoxicating liquors.

And the provision to the effect that “Where the acts complained of may constitute different crimes, such crimes may be charged in separate counts,” we understand it to refer to crimes having different degrees, such as murder and manslaughter, where the criminal act may constitute different crimes.

The act of selling intoxicating liquors on Sunday, the 26th day of February, could not constitute the offense of selling or giving away on any other Sunday, for such selling or giving away would be a separate and distinct offense.

It follows that the demurrer was properly sustained by the court of sessions, and that the judgment should be affirmed and the proceedings remitted to that court.

Barker, P. J., Bradley and Dwight, JJ., concur.  