People v. Olmsted

HERRICK, J.

It seems to me that the conviction in this case should he reversed, for the reason that the complaint or information upon which the defendant was tried did not sufficiently state the crime charged against him. While proceedings before inferior courts are to be liberally construed, and informations lodged before committing magistrates are not expected to be drawn with the technical accuracy that an indictment should be, (Hewitt v. Newburger, {Sup.] 20 N. Y. Sup’p. 913,) yet such informations, taking the place as they do, of indictments in superior courts, should state with sufficient accuracy the crime charged, that the defendant may know the exact offense which it is claimed he has committed, so that he may properly prepare his defense, and so, also, that, after he has been tried upon it, he may plead it in bar upon any subsequent charge against him for the same offense. The information in this case does not specify the crime charged with sufficient accuracy to comply with the requirements suggested; it does not apprise the defendant of the exact charge against him, and the charge is so indefinitely made that it does not seem to me that it would be available as a plea in bar to a subsequent charge made against him for the same offense. The information is that the defendant “on various occasions of 1890 and ’91, at Mongaup Valley, in the town of Bethel, county of Sullivan, N. Y., at different times did commit the crime of selling strong and spirituous liquors to Andrew R. Ramsay, Thomas Casey, Edgar Peck, and others.” When a person is charged with doing an act which may or may not be a crime, and the circumstances or facts which render the act criminal are not set forth, it seems to me that no crime is charged. Selling strong and spirituous liquors may or may not be a crime. If it is sold without a license, that is a crime; if sold with a license, it may or may not be a crime; if sold to a minor, to Indians, on Sunday, or within prohibited hours on secular days, it is a crime, although the person selling has a license. None of these offenses are set forth in this information, yet, if it is held good, any one of these charges could be proved upon the trial. What particular violation of the excise law, in regard to the sale of liquors, is the defendant notified to defend himself against by this information? against what particular charge can he plead it in bar, after he has been tried upon it?

It is true that in this case the warrant states the sale to have been without a license, but the defendant is not tried upon the warrant, but upon the information. The warrant has fulfilled its office when it has brought the defendant into court; that is its only function.

So, also, the allegation as to time is defective. While time is not an ingredient of the crime of unlawfully selling liquors, except as to prohibited days and hours, and, when alleged, need not, perhaps, be proved exactly as alleged, yet the time of the commission of the offense should be alleged, for the purpose of apprising the defendant when it is claimed he committed such crime, (People v. Stocking, 50 Barb. 573,) in order that he may prepare his defense, and also that he may use it, as before suggested, as a plea in bar. Stating the offense to have been committed during two years, as in this case, is not fixing any time at all. It seems to me that both time and place, when and where, his crime is alleged to have been committed, should be set forth in the information; that justice to the person charged so requires; and, the information not complying with that, it is insufficient. I conclude, therefore, that the information is defective in that it does not charge any specific crime, and that the crime attempted to be set forth is defectively alleged as to time, and that the defendant should not have been placed upon trial upon it, and that his conviction thereupon should be reversed.

PUTNAM, J., concurs.