Wynehamer v People.pdf - The University of Texas at Austin

460 CASES IN THE COURT OF APPEALS.Wynehamer against The People.been theretofore used, it is declared by t.ie constitution thaiit shall remain inviolate forever.I am, therefore, in favor of pronouncing a judgment ofreversal in the first mentioned case, and of affirmance inihe other.T. A. JOHSTSON, J. (Dissenting.) The plaintiff in errorwas indicted by a grand jury of Erie county, charged withhaving sold intoxicating liquor in small quantities, contraryto the provisions of the prohibitory act of April 9th, ]855,and was tried and convicted of the offence at a court ofsessions. It was proved upon the trial that he had onseveral occasions, between the 4th of July of that year andthe time of the indictment, sold and delivered, at his bar inBuffalo, to various persons, brandy, in quantities less thanone pint, which was drank upon his premises. As theplaintiff in error had no license to sell in that manner andfor that purpose, the acts proved were such as have beenmisdemeanors in this state, by statute, subjecting theoffender to indictment and conviction, in the manneradopted in this case, certainly ever since the excise act of1801 up to the time when the act in question took effectIt is to be seen, therefore, whether such acts are still criminalin their character, or whether, under the present statute,the criminal feature, so long and uniformly stamped uponthem hitherto, has been taken away.The indictment is for selling contrary to the provisionsof this act, and not to the provisions of the Eevised Statutes;and unless this act has been violated, the conviction in anyview is erroneous.Only two questions properly arise in this case. 1st. "Wasthe liquor so sold by the plaintiff in error subject to theprohibition in the 1st section of the act ? and 2d. Has thelegislature power to enact a valid law, to prohibit the trafficin intoxicating liquors, to the extent to which prohibition iasought to be carried by the act in question ?