People v. Corey ( 1909 )

Smith, P. J.:.

The defendant has been convicted of selling liquor in the village of Santa Clara without authority of law. In May, 1906, he was the proprietor of an. hotel in Santa Clara known as the Mountain View Villa. About sixty-two rods from the hotel, but upon the hotel property and upon the side street, was a small building in which he sold liquor. By stipulation in open court it appears that the voters of the town had voted against the. selling of liquor except under question 4 that liquor might be sold by hotelkeepers only. (See Laws of 1896, chap. 112, § 16", as amd.^*) Upon the fifth day of June the hotel burned down. It was never tliereafter rebuilt by the defendant, and upon the twenty-second of December thereafter the ofíense was committed for which the defendant stands convicted. His first defense is that he was authorized to sell liquor under the hotel license which he held. He claims further that, even if unauthorized, there was no criminal intent, because he was advised that he was authorized to continue the sale after the burning of this hotel. As to the latter claim little need be said, because the ofíénse is malum prohibitum, in the commission of which the intent is immaterial. (People v. Warner, 174 N. Y. 132.)

For can the defendant claim protection from his hotel license. Under section 16 of the Liquor Tax Law question Fo. 4, which is submitted to the People, reads as follows: “ Shall any * * * person be authorized to traffic in liquors under subdivision one of section eleven of the Liquor Tax Law,.5«¿ only-in connection with the business of keeping a hotel * * *.” It is clear that after the hotel burned and was not rebuilt, the selling of liquor in this café could not be <:in connection with the business of keeping a hotel.” The defendant might have surrendered his license and have procured the proper rebate, but he could not continue selling liquor except in connection with the business of keeping an hotel.

The judgment of conviction was fight and should be affirmed.

Judgment of conviction unanimously affirmed.

* See Laws of 1901, chap. -040. Since amended by Laws of 1905, chap. 680; Laws of 1907, chap. 3.45, and Laws of 1908, chap. 144.— [Rep.