People v. Davin

• Decision Date: 24 February 1956
• Citation: 1 A.D.2d 811,148 N.Y.S.2d 903
• Parties: The PEOPLE of the State of New York, Respondent, v. Lawrence DAVIN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 903

148 N.Y.S.2d 903

1 A.D.2d 811

The PEOPLE of the State of New York, Respondent, v. Lawrence DAVIN, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 24, 1956.

Harold M. Weinberg, New York City, for defendant-appellant.

John B. Lee, New York City, of counsel (Walter E. Dillon, New York City, with him on the brief; Daniel V. Sullivan, Dist. Atty., Bronx County, New York City, attorney), for respondent.

Before PECK, P. J., and BASTOW, RABIN, COX and FRANK, JJ.

PER CURIAM.

Judgment affirmed. Order filed.

All concur except FRANK, J., who dissents and votes to reverse and dismiss.

FRANK, Justice (dissenting).

The facts in this case are not in dispute. On October 28, 1955, the defendant, an honorably discharged war veteran regularly employed as a signal maintainer in the New York City Transit Authority, was working behind the counter of a delicatessen store operated by his brother, when one Robert Stewart walked in and requested four cans of beer. The defendant asked him his age, and when Stewart said he was 18, the defendant said '[h]ave you got any proof of it?' Stewart then produced an official Armed Forces card which gave his birthdate as October 7, 1937, thereby indicating to the defendant that Stewart was over 18 years of age. The defendant thereupon sold him four cans of beer. When Stewart walked out of the store and was on the street, he was stopped by a police officer. As the result of a conversation between them, the patrolman and Stewart returned to the store. The defendant was asked whether he had sold beer to Stewart. Upon affirmative response, the policeman asked the defendant, 'Did you know how old this boy was?' The defendant replied, '[h]e told me he was 18.' The patrolman then told the defendant that the boy said he was 17 and handed him a summons charging a violation of Section 65, subdivision 1 of the Alcoholic Beverage Control Law.

The Section reads as follows:

'No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to

'1. Any minor, actually or apparently, under the age of eighteen years'.

A violation of this provision constitutes a misdemeanor. Section 130. It developed that Stewart had altered the date on the official card issued by the United States Marine Corps Reserve, from October 7, 1938 to October 7, 1937. This alteration was not discernible to the naked eye, and it made it appear that Stewart was over 18 instead of just over 17.

Upon these facts the defendant was convicted by the City Magistrate sitting as a Court of Special Sessions, and thus has a conviction for a misdemeanor against his record. The consequences to this defendant may well become very serious. As an employee of the Transit Authority of the City of New York, the conviction may seriously affect his Civil Service status, his opportunity to take promotion examinations and, for all we know, may serve as the basis for the loss of his employment. While it is true that Davin received a suspended sentence, he could have been imprisoned for a term up to one year or an indefinite sentence in the penitentiary. We would have been shocked had any sentence of confinement been pronounced. The same sense of injustice inheres so long as the power for imprisonment exists under the statute.

It is the position of the respondent that since the crime charged is malum prohibitum, intent, guilty knowledge, bad faith, deliberate or negligent conduct need not be established. Nor would the converse of any of these propositions serve as a defense.

It may be of some value to examine the statute upon which this defendant stands convicted. It forms a part of the chapter of laws dealing with the control of alcoholic beverages. Insofar as any violation of the section concerns the retention of a license to sell intoxicants is concerned, is of no moment here. The state in granting a license may impose conditions which would give rise to cancellation of the privilege extended, whether the failure to fulfill the conditions imposed resulted from an intentional or an unintentional act of commission or omission.

Where, however, such an act constitutes a crime (as here by virtue of the omnibus provision of Section 130, Alcoholic Beverage Control Act) a different rule should be applied.

The respondent relies upon Barnett v. O'Connell, 279 App.Div. 449, 111 N.Y.S.2d 166. Since that case was concerned with the license phase of the problem, it cannot be deemed authoritative with respect to a criminal prosecution.

That the distinction drawn is a valid one is supported by the opinions expressed in People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N.Y. 25, 121 N.E. 474. That case involved a violation of the Labor Law which by an omnibus section of the Penal Law was likewise constituted a misdemeanor. Judge Cardozo, in sustaining the validity of the Labor Law, said, 225 N.Y. at pages 32-33, 121 N.E. at page 477: 'But in sustaining the power to fine, we are not to be understood as sustaining to a like length the power to imprison. We leave that question open.' In a concurring opinion Judge Crane stated the problem succinctly. 225 N.Y. at page 35, 121 N.E. at page 478:

'I recognize * * * that there is a distinction between acts mala prohibita and mala in se, but I do not believe that the Legislature is unlimited in its power to make acts mala prohibita with the result that an employer can be imprisoned for the acts of his servant. * * * when an employer may be prosecuted as for a crime to which there is affixed a penalty of imprisonment for an act which he in no way can prevent, we are stretching the law regarding acts mala prohibita beyond its legal limitation.'

What did the Legislature intend by the phrase 'actually or apparently under the age of 18 years'? If we assumed the purchaser of an intoxicant to be actually over the age of 18 but apparently under that age, we would conclude that no conviction could follow even though the intention to sell in violation of the section would be evident. If, therefore, the only fact to be considered were actual age, then the word 'apparently' in the section under consideration would be meaningless surplusage. On must logically conclude, therefore, that the framers of the statute had something more in mind than a sharply drawn line narrowly confined to age. While the legislature may not have required criminal intent either specific or general, it must necessarily by the reference to 'actually or apparently' have required some conscious knowledge in the performance of the prohibited act or some deliberate or negligent conduct in disregard of the purpose of the statute. While these elements are generally considered not to be defenses for a crime classified as malum prohibitum, People v. Werner, 174 N.Y. 132, 134, 66 N.E. 667, 668, nevertheless in the cited case a reversal of a conviction for selling liquor to a minor was ordered. In addition to pointing out other trial errors, the Court of Appeals said, 174 N.Y. at pages 135-136, 66 N.E. at page 668:

'The defendant was duly authorized by law to traffic in liquors, and assuming, as he claims, that he sold the liquor on this occasion to the boy, in good faith, believing him to be over eighteen years of age, he was entitled upon the trial to the benefit of all the rules of law applicable to such an issue.'

Malum prohibitum has been variously defined as an act which is wrong only because made so by statute, Ballentine, Law Dictionary with Pronunciations, 2nd ed., or a thing which is wrong because prohibited. Black, Law Dictionary, 4th ed. It cannot mean that the purely mechanical performance of the prohibited act compels conviction. Were that so, every infant, imbecile...