People v. Krank
| Decision Date | 02 October 1888 |
| Citation | 18 N.E. 242,110 N.Y. 488 |
| Parties | PEOPLE v. KRANK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, Fifth department.
Indictment against Nicholas Krank for selling liquor without license, found at the court of oyer and terminer of Orleans county, and transferred to the 243 court of general sessions. Defendant was tried by jury and convicted, but, upon appeal to the general term, the conviction was reversed, and the people appeal from the judgment of reversal.
W. P. L. Stafford, Dist. Atty., for appellant.
C. J. Church, for respondent.
The defendant was indicted for selling liquor without a license on the 3d day of July, 1886, which was Saturday. The proof upon which he was convicted showed a sale on Sunday. The indictment did not allege a sale on Sunday, and the defendant now argues that he could not properly be convicted of a sale on the latter day under such indictment. It is, to say the least, doubtful whether the point is raised by any valid objection and exception. Upon the trial the people called a witness, who testified that he was in the defendant's place on the first Sunday in July, and he was then asked whether he drank anything there that day. This was objected to by counsel for defendant on the ground that it was incompetent, immaterial, and did not tend to prove the charge set up in the indictment. The objection was overruled, and the defendant excepted. The witness then answered that he did; that he asked for gin, which defendant gave him out of a bottle; and that he paid for it. The defendant's counsel asked the court to charge that the offense must be proved to have been committed on the 3d day of July, which was refused, and the counsel for defendant excepted. The court said: ‘If you believe the witness Vezie, that this liquor was bought on the 4th of July, then you will find a verdict of guilty,’ and an exception was taken. There is nothing in either of these exceptions to call the attention of the court to the distinction between a sale on a week day and one on Sunday; but the point that seems to have been taken was that it was incompetent to prove a sale on one day if the indictment charged a sale on another, or, in other words, that the proof of a sale must be confined to the very day laid in the indictment. This is manifestly untenable, as has frequently been decided; for in such case time is not of the essence of the crime. The purpose of an objection and exception is to call the attention of court and counsel to the very point in controversy, so that a decision may be made intelligently with reference to such question. It is very loose practice, and ought not to be commended. But as the case is here, and objection has not been taken to its considerationupon the merits, we will examine it upon the assumption that the point was properly raised upon the trial.
The question is not whether a conviction can be had of a sale on Sunday, under the provisions of section 21 of the act of 1857, to suppress intemperance, etc., without alleging in the indictment that the sale was on such day; but whether, under a general indictment alleging a sale of liquor without a license, a conviction can be had under the provisions of section 13 of the same act, in case the proof shows that the sale did take place on Sunday. The 13th section is general in its application, and prohibits any one from selling at any time without a license. Section 21 in the original act prohibited a sale on Sunday by any inn, tavern, or hotel keeper, even if he had a license. But, by amendment passed in 1873, section 21 was amended so as to prohibit any one from selling intoxicating liquors on Sunday, whether the person selling had a license to sell on other days or not. The general term have held in this case that the amendment of 1873, as to selling on Sunday, has not only made a separate and distinct offense, but has so far altered the general law in that respect that it is no longer applicable to a sale on that day. The reason stated is that if the general law still remained applicable a person who had no license, and who sold on Sunday, would,...
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People v. Roderman
...as barring successive prosecutions for elementally 'separate and distinct' offenses arising from the same act (People v. Krank, 110 N.Y. 488, 491-493, 18 N.E. 242, 243). But more recently, profession of doubt as to the meaning of the word 10 has elsewhere been compromised by regarding it as......
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State v. Stafford
...Heibel, 116 Mo.App. 43, 90 S.W. 758; Shuler v. State, 125 Ga. 778, 54 S.E. 689; O'Brien v. State, 91 Ala. 25, 8 So. 560; People v. Krank, 110 N.Y. 488, 18 N.E. 242, 23 Cyc. 187; State v. Moeling, 129 La. 204, 55 So. 764; Carpenter v. State, 120 Tenn. 586, 113 S.W. 1042.) Cannon, Ferris & Sw......
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State v. Thompson
...not failed to consider that § 610.21 was copied from § 677 of the Penal Code of New York adopted in 1881 and construed in People v. Krank, 110 N.Y. 488, 18 N.E. 242. We do not concur in the statutory construction adopted in the Krank case.13 Kugling v. Williamson, 231 Minn. 135, 42 N.W.2d 5......
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People v. La Marca
...does not constitute a material variance (Code Crim.Proc., § 280; People v. Jackson, 111 N.Y. 362, 369, 19 N.E. 54, 56; People v. Krank, 110 N.Y. 488, 492, 18 N.E. 242, 244; 42 C.J.S. Indictments and Informations § 257, p. 1277; 27 Am.Jur., Indictments and Informations, §§ 70-72, pp. 633-635......