By the indictment the defendants were charged jointly with the crime of trafficking in liquors on Sunday by unlawfully selling to John Paolis and divers other persons to the grand *463jury unknown spirituous liquors of several kinds. At the trial the proofs offered by the district attorney tended to prove a sale by the defendant Peter Kozak at an early hour on the morning of Sunday, June 9,1912, between six and seven o’clock; defendant John Kozak was not present and had no part in this transaction; that thereafter and between eleven and twelve o’clock of the same forenoon the defendant John Kozak sold liquor to Paolis and other persons not present at the first sale. The defendant Peter Kozak was not present at this latter transaction and had no part therein. There is evidence that Peter was a proprietor of the saloon where these sales were made, but whether sole proprietor or whether he and his brother John were both proprietors does not clearly appear, though that both were such is the most probable inference, and was so assumed In questions put by counsel to witnesses. The indictment did not allege, nor did the district attorney attempt to prove, that either or both defendants were proprietors of this saloon, or what relation either had to the business, nor did the district attorney claim at the trial, nor does he claim here that any facts were proved which made either defendant criminally liable for the sales made by his codefendant. The case was submitted to the jury on the theory that each defendant was liable for his own personal acts in making sales, and there was no suggestion that if the jury found either defendant not guilty of making a sale he could be convicted on account of sales shown to have been made by his codefendant. The jury found both defendants guilty as charged in the indictment, and each was sentenced to a term of six months’ imprisonment in the Onondaga County Penitentiary.
This appeal is based principally upon the ground that error was committed in the conviction of each defendant of a separate and distinct crime. While the indictment did not purport to charge separate transactions as. constituting the one crime alleged, and, hence, this question could not have been presented by demurrer, the question was distinctly raised by defendant’s counsel by exception to the charge and the refusal to charge as requested, and by motion in arrest of judgment and for a new trial.
By section 278 of the Code of Criminal Procedure it is pro-*464Tided that “the indictment must charge hut one crime and in' one form, except as in the next section provided. ” The next section (279) is as follows: .“The crime may be charged in separate counts to have been committed in a different manner, or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.” The. .question is, do the separate transactions proved in which each defendant acted separately and not in participation with his codefendant constitute one crime ?
The question turns upon the true construction and meaning of section 35 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1909, chap. 281). This section, so far as material here, is as follows: “except as hereinafter provided, each violation of any of the provisions of this Chapter shall be construed, to constitute a separate and complete offense, and for each violation on the same, day, or on 'different days, the person or persons offending shall be liable to the penalties and forfeitures imposed by this chapter; *' * *. All violations of this chapter, committed by any person on the same day, shall together constitute but one crime, which shall be denominated the crime of ‘violating the liquor tax law,’ and it shall be competent to prove, on the trial or hearing, each separate violation committed on said date, provided each violation proved is set forth in the indictment, charge or complaint, in general or specific terms.” The last clause quoted, making all violations committed on the same day constitute one crime, was added to section 33 of the former Liquor Tax Law (Gen. Laws, chap. 29; Laws of 1896, chap. 112) by- chapter 350 of the Laws of 1908, and was re-enacted in 1909 as section 35 {supra). It is the contention of the learned district attorney that the sentence added by the amendment makes all violations committed on the same day by any number of persons at the same place one crime, and that they may all be included in the same indictment and convicted of the one Crime, notwithstanding that each was ."guilty of. an act entirely separate and distinct from . that of his associates. 1
It will be seen that as the section stood prior to the amendment of 1908 each separate sale of liquors on the same day by *465one person constituted a separate and complete offense, for which as many indictments might be' found as there were separate and distinct sales. It seems to have been the object of the amendment to prevent one person from being made liable for more than one crime for all the sales which he might make on the same day, and also to permit conviction to be had upon proof of any one of the sales made upon that day, where the indictment charged more than one sale in general or specific terms.
The construction of the statute contended for by the learned district attorney would permit including in one indictment as guilty of one and the same crime all persons selling liquor in violation of the act in the same town or village on the same day, although the transactions were entirely separate and distinct, in different buildings, without any co-operation among the defendants or any knowledge upon their part of any sales except as each knew of the sales he himself made. We think such was not the purpose or intent of the statute.
The more reasonable construction of the statute is that the words “All violations of the Liquor Tax Law [now this chapter], committed by any person on the same day,” refer to all violations by the same person, and not. to separate violations by all persons on the same day, and, therefore, that separate violations by different individuals not acting in common do not constitute one crime, but separate and distinct crimes for which each must be prosecuted separately.
It follows that the judgment of conviction should be reversed and a new trial ordered in the County Court.
Judgment of conviction affirmed.