State v. Kind

• Decision Date: 21 February 1910
• Citation: 75 A. 438,80 N.J.L. 176
• Parties: STATE v. KIND et al.
• Court: New Jersey Supreme Court

75 A. 438

80 N.J.L. 176

STATE

v. KIND et al.

Supreme Court of New Jersey.

Feb. 21, 1910.

Error to Court of Quarter Sessions, Cumberland County.

Otto Kind and another were convicted of selling intoxicating liquors without a license, and they bring error. Affirmed.

Argued February term, 1909, before GUMMERE, C. J., and SWAYZE and PARKER, JJ.

Garrison & Voorhees, for plaintiffs in error.

J. Hampton Fithian, Prosecutor of the Pleas, for the State.

PARKER, J. The plaintiffs in error were indicted jointly for selling malt, vinous, and spirituous liquors without a license. The first two counts charge the illegal sale to certain individuals named therein, the third count charges the habitual illegal sale in accordance with section 74 of the Criminal Procedure Act (P. L. 1898, p. 894), while the fourth count charges a violation of the "Morris Law," approved April 10. 1908 (P. L. p. 221), amending Act P. L. 1895, p. 750, and which in substance provides by section 1 a license fee of not less than $100 for beer bottlers or sellers of bottled beer; provided that holders of so-called "wholesale licenses" for sale of spirituous, vinous, malt, or brewed liquors in quantities from one quart to five gallons, not to be drunk on the premises where sold, shall be exempt from the provisions of the act; and by section 3, as amended, further provides that, from and after 30 days next succeeding the passage of the act, every person except those mentioned in the above proviso carrying on the business specified in section 1 without license shall be deemed guilty of a misdemeanor, etc. There was a general verdict of guilty, and the entire record of the proceedings is returned under section 136 of the Criminal Procedure Act of 1898 (P. L. pp. 866, 915), but without any specification of causes for reversal as required by section 137 of that act. We are therefore not called upon to consider any alleged errors except those brought up by the exceptions and assignments of error or appearing on the face of the record. State v. Young, 67 N. J. Law, 223, 226, 51 Atl. 939; State v. Shults, 69 N. J. Law, 206, 54 Atl. 235; State v. MacQueen, 69 N. J. Law, 522, 55 Atl. 1006; State v. Lyons, 70 N. J. Law, 635. 639. 58 Atl. 398; State v. Miller, 71 N. J. Law, 527, 529. 60 Atl. 202; State v. Herron, 71 Atl. 274. This disposes of all the assignments of error, except the second, third, and fourth, based on exceptions to the charge, and the tenth, that the "record fails to disclose on which count, if any, of the indictment defendants or either of them were convicted." As to this last it is sufficient to say that a general verdict of guilty operates as a conviction on all the counts and there was evidence justifying a conviction on every count, and the sentence imposed is justified under any count. See State v. Mount, 72 N. J. Law, 365, 61 Atl. 259.

The second assignment of error is as follows: Because the trial judge erred in saying in his charge: "The state contends that there has been a violation of the statute inasmuch as they have peddled beer in the borough of Vineland, contrary to the statute and without a license;" thereby incorrectly and without any evidence to support it assuming that defendants had "peddled beer without a license." There was no assumption of fact in the portion of the charge quoted; the court was only stating what it understood the state claimed to have made out on the evidence.

The third assignment of error is: Because the trial judge erred in charging the jury as follows: "A person sending an order to Charles B. Kind in Atlantic county, whether accompanied with money or unaccompanied with the price, consummates the sale in Atlantic county, provided that the vendor, Charles B. Kind, does not assume any further duty regarding the goods sold. If Charles B. Kind assumed a further duty regarding the goods sold, such as the delivery of the goods at a particular place, then he did not consummate the sale until the delivery of the goods at the designated place." There was no particular controversy about the facts. It is conceded that the evidence showed that Charles Kind conducted and still conducts a wholesale and retail establishment on Wheat Road, in Atlantic county, being duly licensed by the court of Atlantic county for the sale of intoxicating liquors. Otto Kind was an employé of Charles Kind, hired at a daily wage to drive a wagon for his father and to deliver beer for him. People in Vineland were accustomed to, and had for years been in the habit of, buying beer from Charles Kind, and during the period shown by the testimony the method of doing business was as follows: The inhabitants of Vineland (which is without licensed hotels) when wanting beer would place their order in an envelope, addressed to "...