State v. Ryan

• Decision Date: 23 February 1897
• Court: Connecticut Supreme Court
• Parties: STATE v. RYAN.

37 A. 377

68 Conn. 512

STATE

v. RYAN.

Supreme Court of Errors of Connecticut.

Feb. 23, 1897.

Appeal from superior court, Windham county; George W. Wheeler, Judge.

Matthew Ryan was convicted of offenses against the liquor laws, and appeals. Affirmed.

William C. Case and Joseph L. L. Barbour, for appellant.

Edgar M. Warner and John L. Hunter, State's Atty., for the State.

TORRANCE, J. In the court below the defendant was prosecuted for a violation of the laws relating to the sale of spirituous and intoxicating liquors. The information contained five counts, the first of which alleged a sale of such liquors by the defendant, without a license, at the town of Putnam on the 9th day of July, 1895; and the fourth count charged, as a second offense, that on the same day, and in the same town, the defendant owned and kept such liquors with intent to sell them, without having a license therefor. The defendant was found guilty on the first and fourth counts, and not guilty on the other counts. After verdict, and before judgment was rendered, the defendant filed a motion in arrest of judgment upon certain grounds, the substance of which may be stated as follows: (1) Since the date of the offenses charged in the first and fourth counts, chapter 331 of the Public Acts of 1895 has abolished the penalty which at the date of the commission of said offenses was provided for them, and has substituted in lieu thereof a penalty for said offenses, "enlarging the punishment therefor, and compelling the court to impose a more severe penalty than might have been imposed at the time of the commission" of said offenses. (2) The fourth count of the information "does not charge the commission of any first offense upon which a charge of a second offense can legally be based; and does not charge the commission of the second offense as any legal crime with the certainty and precision required by law, so as to apprise the defendant of the precise offense of which he stood charged, or so as to enable him to prepare his defense, or so as to enable the court to render judgment upon said fourth count. (3) Both the offenses of which the accused was convicted are alleged to have been committed on the same day, and constituted but one offense,— the offense of owning and keeping intoxicating liquors with intent to sell, as set forth in the fourth count, culminating and being merged in the sale of such liquors as set forth in the first count; and therefore, if the court should pass judgment and impose sentence upon both counts, the defendant would be twice punished for one offense." The court overruled said motion, and sentenced the defendant to pay a fine of $30 on the first count, and on the fourth count to pay a fine of $50, and to be imprisoned in jail for 30 days. During the trial the defendant objected to the admission in evidence of certain exhibits offered by the state, but the court overruled the objections, and admitted the evidence. The errors assigned upon this appeal are: First, the admission of the exhibits in evidence; and, second, the overruling of the motion in arrest.

The claimed errors relating to the admission of the exhibits in evidence were not pressed before this court, and with respect to them it is perhaps enough to say that the rulings upon evidence complained of were right. With reference to the overruling of the motion in arrest, we are of opinion that it was properly overruled.

The first ground of arrest stated in the motion is not tenable. The offenses charged in the first and fourth counts of the information were committed prior to the time when chapter 331 of the Public Acts of 1895 went into effect, and when committed were punishable under section 3087 of the General Statutes. They remained punishable under that section, notwithstanding the fact that the conviction of the defendant occurred after the aforesaid act of 1895 took effect; for that act only affected offenses committed after it took effect, and did not affect the punishment for the offenses of which the defendant was convicted. State v. Sanford, 67 Conn. 286, 34 Atl. 1045; Gen. St. § 1.

The third ground of arrest is equally untenable. The offense of selling spirituous and intoxicating liquors without a license therefor may, of course, include the previous owning and keeping them with intent to sell without a license; but the offenses are nevertheless distinct offenses. The offense of an illegal sale may be committed without a previous owning and keeping of the liquors sold with intent to sell them without a license therefor (State v. Wadsworth, 30 Conn. 55); and, of course, the latter offense may be committed without an actual illegal sale. The defendant's claim upon this point is based upon the assumption that the record shows that the charge of selling in the first count, and the charge of owning and keeping with intent to sell in the fourth count, are based upon one and the same transaction, namely, the sale of certain liquors without a license, which liquors, prior to and up to the time of said sale, he had owned and kept with intent to sell without a license. If this assumption were well founded, the record would present a different question from the one we are here called upon to consider; but the assumption is not well founded, and the...