Supreme Court of New Hampshire, 1908

State v. Bean

Supreme Court of New Hampshire · Decided November 4, 1908 · Parsons

71 A. 216; 75 N.H. 122; 1908 N.H. LEXIS 50

Counsel

Marshall D. Cobleigh, solicitor, for the state. John W. Kelley and George W. Stone, for the defendants. The indictment is bad for uncertainty. If the sale was made, it was made in violation of chapter 112 of the Public Statutes and amendments thereto, or it was made in violation of chapter 95, Laws 1903, and amendments thereto, to which offences different penalties attach. Laws 1903, c. 122; Laws 1903, c. 95, s. 33. From a reading of the indictment it is impossible to tell which law applies to the alleged offence. If it was intended to charge a violation of law by the defendants as licensees, the premises upon which they were authorized to sell, constitution license territory, should have been described with substantial conformity to the description of the same in the license, and the sale alleged to have been made on such premises. Laws 1905, c. 117, s. 1; State v. Langdon, 74 N.H. 50 .

Opinion of the Court

Parsons, C. J.

The sale or delivery of liquor to a minor by a licensee is a violation of section 15, chapter 95, Laws 1903, as amended by section 9, chapter 49, Laws 1905, punishable under section 38, chapter 95, Laws 1903. Laws 1905, e. 49, s. 18 ; State v. Langdon, 74 N. H. 50; State v. Kennard, 74 N. H. 76; State v. Kidder, 74 N. H. 302. It is alleged that the law licensing the sale of liquor had been duly accepted (Laws 1903, c. 95, s. 31) and on the date of the offence charged was in force in the town of Canaan ; that the defendants were then and there copartners in business, and, having then and there a license for the purpose of selling liquor, did then and there unlawfully sell (in the second count, deliver) liquor to a minor under the age of twenty-one years.

The allegations that the license law was in force in Canaan and that the defendants were then and there licensed to sell liquor are sufficient to make it plain that the offence charged is the violation of the special provisions of the license law by the defendants as licensees. State v. Langdon, 74 N. H. 50, 52; State v. Roberts, 74 N. H. 476, 479. If the state proves that, when and where they were licensees within the meaning of the act, the defendants in Canaan sold or delivered liquor as charged, the offence will be made out. It is not advisable to speculate upon possible questions that may or may not arise upon the evidence.

Motion denied.

All concurred.

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