People v. Weiner
| Decision Date | 02 June 1914 |
| Citation | 105 N.E. 658,211 N.Y. 469 |
| Parties | PEOPLE v. WEINER. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Isaac N. Weiner was convicted of violating the Liquor Tax Law, and from an order of the Appellate Division (153 App. Div. 541,138 N. Y. Supp. 320), reversing the judgment of conviction and dismissing the indictment, the People appeal. Affirmed.H. J. Hewitt, of Delhi, for the People.
C. L. Andrus, of Stamford, for respondent.
The defendant was indicted for violating subdivision ‘k’ of section 30 of the Liquor Tax Law (Cons. Laws, c. 34; Laws of 1909, c. 39), under which it is a misdemeanor ‘to solicit, accept or procure in a town in which a liquor tax certificate is prohibited,’ pursuant to the local option provision of the statute, ‘an order to deliver or send to another, or for another, liquor in any quantity, where the person for whom such liquor is procured resides in any such town.’ The indictment alleged that the defendant was a resident and citizen of Kingston, in Ulster county, and set forth facts showing that the town of Andes, in the county of Delaware, was a town in which a liquor tax certificate was prohibited. It further charged that, notwithstanding these facts, the defendant on or about the 5th day of March, 1910, willfully and unlawfully solicited, accepted, and procured in the said town of Andes an order to deliver or send to one J. D. Frisbee one gallon of whisky, where the person for whom such liquor, to wit, J. D. Frisbee, was procured resided in said town of Andes at the time the said defendant solicited and procured such order. There was a further allegation to the effect that the defendant delivered to the said Frisbee, in pursuance of the order so solicited, one gallon of whisky, for which he paid the defendant $2.50.
Upon the trial the defendant was convicted and the county court imposed a fine of $200, deferring ‘the imprisonment portion of the sentence until a future time to be brought up upon motion of the District Attorney.’ The Appellate Division had reversed this judgment and dismissed the indictment.
There was no substantial controversy as to the facts. It appeared without dispute that the sale of the liquor in question to J. D. Frisbee of Andes, a town in which liquor tax certificates were prohibited, was made through the agency of a circular letter and price lists bearing the name of the defendant, a liquor dealer at Kingston, and sent through the mail to Frisbee from his establishment. The mail department of the defendant's business was conducted by his son, to whom he had given positive instructions not to send circulars soliciting custom into no-license towns. Like instructions had been given by the son to his subordinates in the store. It did not appear how they came to be disregarded in this particular instance by the stenographer in the mailing department who admitted sending the circulars to Frisbee; she simply had no recollection about it. The defendant testified that he did not know any circular was sent to J. D. Frisbee in the town of Andes of any character whatever or that any circular was sent to any person in the town of Andes. He relied upon his son to follow his instructions, and he had no knowledge or information of any transaction with J . D. Frisbee until this indictment was found.
No attempt was made to controvert the defendant's denial of any personal participation in the transaction. The court held that it was not necessary to prove that he knew anything about it. This appears from the following request to charge and the ruling of the learned county judge thereon:
The case has provoked unusual diversity of opinion in the Appellate Division. The presiding justice construes the prohibition in the statute as applicable only to cases where the contemplated sale is to one person for the benefit of another person, and holds that it is no offense against the law to solicit a resident of a no-license town to purchase liquor for himself. Two of his associates who concur with him for reversal place their vote solely upon the ground that the statute contemplates the personal presence of the offender in the no-license town when and where he solicits the purchase. The other members of the court agree with the construction placed upon the statute by the county judge and vote for affirmance.
The conclusions which I have reached do not precisely and entirely accord with any of the views expressed in the courts below. As subdivision ‘k’ of section 30 of the Liquor Tax Law is an important provision of that statute, the operation of which is likely to be frequently invoked, I will state these conclusions categorically for the guidance of trial courts in the future if my views shall meet with the concurrence of my associates.
[1] 1. Personal guilt on the part of the offender is necessary to the maintenance of a...
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People v. Bellows
...yet the cases lean to this conclusion, and some dicta indicate that we have considered such to be the law. People v. Weiner, 211 N.Y. 469, 475, 105 N.E. 658, 660, Ann.Cas.1915D, 733. Although this case did not contain a statement that the Appellate Division had reviewed the facts and was sa......
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People v. Redmond
...the same (People v. Boas, 92 N. Y. 560), and as we have stated (People v. O'Brien, 164 N. Y. 57, 58 N. E. 117;People v. Weiner, 211 N. Y. 469, 475,105 N. E. 658, Ann. Cas. 1915D, 733;People v. Conroy, 97 N. Y. 62, 72;People v. Stevens, 104 N. Y. 667, 10 N. E. 527;Harris v. Burdett, 73 N. Y.......
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People v. Patterson
...to be offered, the indictment should be dismissed (see, e. g., People v. Walker, 296 N.Y. 740, 70 N.E.2d 548; People v. Weiner, 211 N.Y. 469, 475, 105 N.E. 658, 660). Accordingly, the judgment of conviction should be reversed, on the law and the facts, the indictment dismissed, and defendan......
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