which, or who, has not paid a tax, as provided in section eleven of this act, and obtained and posted the liquor tax certificate, as provided in this act, to sell, offer or expose for sale, or give away liquors in any quantity less than five wine gallons at a time; nor, without having paid such tax and complied with the provisions of this act, to sell, offer or expose for sale, or give away liquor in any quantity whatever, any part of which is to be drunk on the premises of such vendor. * In section 33 of that act it is provided that any person engaged in the traffic of liquors "shall, upon conviction of a violation of any of the provisions of this act, be liable for and suffer the penalties imposed therein; and each violation of any * # * of the provisions of this act 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 act." The evidence given as to the purchase made by Whalen, if credited, was sufficient "to constitute a separate and complete offense," as declared in the language of the statute which has just been quoted. The People put upon the stand C. H. Robinson as a witness, who testified that in the latter part of March he had occasion to go to this hotel, and he was then asked: "Q. Did you have anything to drink there?" The defendant objected to the question on the ground that it was "incompetent and seeks to prove another and distinct crime from the one already sought to be proved." The witness then added: "I cannot tell you what day it was. Have not very much recollection of the time. Have no means of telling when it was. I was sworn before Mr. Scott." Thereupon the following question was propounded to him: "Q. Did you, in that affidavit, state when it was you had something to drink in that hotel?" This was objected to again on the ground that it was incompetent, immaterial and irrelevant. The objections were overruled and the defendant took an exception. The witness answered: "I think the affidavit would refresh my mind as to what I did say." Thereupon the district attorney put in the hands of the witness a paper and asked him to read it, and then propounded to the witness the following question: "Q. Can you state to the jury when it was you had anything to drink in Huffman's Hotel the latter part of March?" This was objected to by the defendant as "incompetent. 2d. Seeks to prove a separate and distinct crime from the one already sought to be proved. 3d. Inadmissible under the indictment." The objections were overruled and the defendant took an exception. The witness answered: "Some time in March. It was previous to the prosecution, but can not tell how long before. I guess I did swear how long it was. I guess I can tell what I swore to. It says so in that affidavit. The affidavit was made on the 28th day of March." The following question was then propounded to him: "Q. What was it you did on the occasion referred to?" The defendant objected to the question on the ground that it was "immaterial, irrelevant, seeking to prove a distinct crime from the one already sought to be proved. Inadmissible under the indictment." The objections were overruled and an exception taken. The witness answered: "I drank at the bar there; drank beer; and I drank whiskey there. I bought the whiskey of this young man Coleman. I bought one drink of him and I guess I paid ten cents. Paid it to Coleman. I was in the habit of going in and out of there sometimes three or four times a day." The language used in the indictment would warrant the construction apparently given to it by the county judge that the averment was that the sale was to Whalen and Robinson jointly, which was doubtless the view taken by the county judge in order to overcome the objections made by the defendant to the indictment. (People v. Harmon, 49 Hun, 558; S. C. affd., 112 N. Y. 666.) The People, however, in producing evidence, gave testimony to the effect of the independent sale made to Whalen of the whiskey on two different occasions (there being no objection to the second occasion), and when the attempt was made by the evidence of Robinson to prove another violation, it was apparently to prove a violation not specifically mentioned in the indictment. As we have seen, the statute provides that each violation shall be a complete offense. If the evidence which was offered and received from the witness Robinson is received and considered, then the People are in the attitude of proving an additional offense to the one alleged in the indictment. The refusal of the defendant's counsel to concede that the People had proved one offense by the testimony of Whalen, does not seem to be an adequate excuse for allowing evidence from Robinson of a distinct, separate, independent violation of the law. Section 33 of chapter 112 of the Laws of 1896, provides that "each violation on the same day, or on different days," shall subject the person offending "to the penalties and forfeitures imposed by this act." If the evidence of Robinson was competent, then we have an anomalous situation of an indictment alleging a sale to Whalen and Robinson as a sale to them jointly; proof of sale to Whalen under that indictment and then proof of sale on another occasion to Robinson in the absence of Whalen. As already stated, section 275 of the Code of Criminal Procedure prescribes that the indictment shall contain "a plain and concise statement of the act constituting the crime." It will hardly do to allege an act in violation of law by a sale to two persons jointly, and to prove the sale to one independent of the other, and having given such proof of the act constituting the crime, to prove another additional act; especially under a statute which declares that each and every violation of any of its provisions "shall be construed to constitute a separate and complete offense" and subject the party accused of a violation "for each violation on the same day, or on different days," to a penalty. (People v. Krank, 110 N. Y. 488; People v. Charbineau, 115 id. 433, which was commented upon in People v. Wilson, 151 id. 409.) If the foregoing views prevail, it will lead to a reversal of the judgment and order and a new trial. All concurred. Judgment upon the verdict and order denying a new trial. reversed and a new trial directed in the County Court of Allegany county, to which county, after entry of judgment in pursuance of section 547, etc., of the Code of Criminal Procedure, the proceedings are remitted. Fourth Appellate Department, December, 1897. Reported. 24 App. Div. 309. THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES BEDELL, Respondent, v. JOHN F. KINNEY, Sheriff of Niagara County, Appellant. Writ of habeas corpus-Premature, if granted to review a sentence, the imprisonment under a valid requirement of which has not expired. A person who is imprisoned under a sentence for a violation of the Liquor Tax Law, legal so far as it requires his imprisonment for six months, and illegal so far as it requires his continued imprisonment for a certain period after the expiration of the six months, is not entitled until the six months have expired to a writ of habeas corpus to inquire into the cause of his imprisonment. WARD, J., dissented. APPEAL by the defendant, John F. Kinney, sheriff of Niagara county, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 7th day of May, 1897, upon the return to a writ of habeas corpus, directing that the relator be discharged from imprisonment on the 23d day of July, 1897. Further facts are stated in the dissenting opinion. Abner T. Hopkins, District-Attorney, for the appellant. The respondent not appearing personally or by counsel. FOLLETT, J.: The relator was sentenced January 23, 1897; the habeas was issued April 19, 1897; and May 7, 1897, the order appealed from was granted and entered, which directed that the relator be discharged July 23, 1897. It is conceded that the part of the judgment adjudging that the relator be imprisoned for six months is legal and regular. The writ of habeas corpus is a writ of liberty, and relief cannot be granted by virtue thereof until the relator is entitled to his liberty. The proceedings were premature, and the writ should have been dismissed. (People ex rel. O'Brien v. Woodworth, 78 Hun, 586; People v. Sutton, 24 N. Y. St. Repr. 726; S. C., 6 N. Y. Supp. 95; People ex rel. Trainor v. Baker, 89 N. Y. 460.) The order should be reversed and the proceedings dismissed. All concurred, except WARD, J., dissenting. WARD, J. (dissenting): The relator was convicted for a violation of the Liquor Tax Law on the 23d of January, 1897, in the Niagara County Court and sentenced by that court to be imprisoned in the Niagara county jail at hard labor for the term of six months and to pay a fine of $1,050, or to be imprisoned until the fine was satisfied, not exceeding 1,050 days. The defendant was a saloonkeeper in Lockport, N. Y. He had not obtained a liquor tax certificate. The amount of tax imposed upon a person trafficking in liquors as a keeper of a saloon in the city of Lockport was, in the year 1896, after the enactment of the Liquor Tax Law, $350. Before the expiration of the term of imprisonment, and in April, 1897, a justice of the Supreme Court issued a writ of habeas corpus, returnable at a Special Term of that court, to inquire into the cause of the imprisonment of the relator by the sheriff of Niagara county and directed to him, which writ was issued upon the petition of the relator alleging that he was illegally detained and imprisoned by the sheriff. The sheriff made return to the writ that the relator was in his custody as sheriff and the true cause of his imprisonment and restraint by him was the sentence aforesaid. Upon the hearing of the writ, the court at Special Term made an order May 7, 1897, that the relator be remanded to the sheriff of Niagara county and there remain until the expiration of six months from Jan. 23, 1897, and upon the expiration of the said term of six months that he be discharged from the custody of the said sheriff. The court below held that that portion of the sentence which directed that the relator be imprisoned until the fine was satisfied, not to exceed 1,050 days, was not authorized by law and was void, and for that reason directed that the imprisonment should cease after the expiration of six months. The sentence was certainly valid as to the extent of the six months' imprisonment. (People ex rel. Trainor v. Baker, 89 N. Y. 460; People ex rel. O'Brien v. Woodworth, 78 Hun, 586; People v. Sutton, 6 N. Y. Supp. 95; People ex rel. Tweed v. Liscomb, 60 N. Y. 559, and cases cited.) The learned counsel for the appellant insists that the whole sentence was authorized by law, and the court below committed error in its order. His argument is that the sentence is warranted by section 34 of chapter 112 of the Laws of 1896, which is familiarly known as the "Raines Law," and is an act |