THIRD DEPARTMENT, DECEMBER TERM, 1874.

order canceling and revoking the license, and served the same personally upon the relator, and demanded the surrender of his said license, with which demand he refused to comply.

Youmans & Niles, for the relator.

Samuel Yeomans, for the defendant.

HARDIN, J.:

The relator was not entitled to a trial by jury. The statute under which he received his license, expressly authorizes and empowers the board of excise, when "they shall become satisfied that any such person or persons has or have violated any of the provisions of the act, to revoke, cancel and annul the license of such persons." The license was merely a permit given to the relator, under which he was authorized to sell ale or beer. It did not give him any property or vested right to enjoy the privileges thereof beyond the time when the board should become satisfied that he had violated any of the provisions of the acts of 1857, 1869, 1870 or 1873. The board had no power to inflict a penalty upon him for violation of the law. They were simply authorized to revoke the permit theretofore given him in respect to ale or beer.* In The Metropolitan Board of Excise v. Barrie,† Judge WRIGHT says: "These licenses to sell liquors are not contracts between the State and the persons licensed, giving the latter vested rights, protected on general principles and by the Constitution of the United States against subsequent legislation; nor are they property in any legal or constitutional sense. * *They form a portion of

*

*

the internal police system of the State," etc.

The board, in issuing licenses and in revoking them, are clothed with power to be exercised in their discretion. In Ex parte Persons, it was held that their discretion was full and ample, "and one the court will in no case attempt to control."

In People v. Norton,§ WILLARD, J., says: "Justices, in granting or refusing licenses, under the excise law, do not act solely as

* Section 4, Laws of 1873; 3 Kernan, 378; The M. Board v. Barrie, 34 N. Y., 657.

† 34 N. Y.,

657-667.

+ 1 Hill, 655.

§ 7 Barb., 477.

THIRD DEPARTMENT, DECEMBER TERM, 1874.

judicial officers. They have indeed a discretion to exercise which this court will not control by mandamus."

In People v. Jones, * ALLEN, J., says: "The commissioners cannot be coerced in the exercise of their discretion by mandamus or otherwise, and for a mere mistake are not liable either civilly or criminally."

The relator objected to the power of the board to administer oaths to the witnesses produced, and the objection was overruled and the relator excepted. But he did not himself ask to have any witness examined, either with or without oaths, in his behalf. The statements made by the complainant and by the witnesses produced, were before the board, and were to the effect that the relator had violated the provisions of the law under which the license was issued, and the board upon this became satisfied that the relator had violated the provisions of the act, and therefore revoked their license to him. If it be conceded that the board had no power to administer oaths, still this information was before them, and satisfied them that the relator had violated the law, and it therefore became their duty to revoke his license. The counsel for the relator referred us to Berrien v. Westervelt,† where proceedings in replevin were set aside because the commissioners had no power to take an affidavit. There the statute forbade the issuing of a writ without an affidavit, and Justice SUTHERLAND very properly remarked: "the compliance with the statute is in the nature of a condition precedent." The statute now under consideration simply permits, upon demand of the board or the party complained of, the board to call in witnesses, and have them examined under oath. Confessedly, it was competent for the relator to waive, as he did, his right to have witnesses examined, as it is well settled that a party may waive a statutory provision made for his benefit. The board being satisfied, to exercise their discretion in respect to revoking licenses, that a violation of the law had taken place, were not required to take the formal proceedings and full evidence which might be proper and necessary to reach a judicial conclusion, which should work a deprivation of property or produce and interference with life or liberty. They were simply to become satisfied in their judgment, and then this right, as well as duty, to revoke + 12 Wend., 194.

* 54 Barb., 315.

THIRD DEPARTMENT, DECEMBER TERM, 1874.

the permit which had been given the relator, was clear. They were simply recalling the permit which the relator had obtained and held from the board, and which he accepted upon the condition that the board might, in their discretion, revoke. As before seen by the authorities cited, the giving of such a license depended upon the discretion of the board; so, too, the revocation was authorized the moment they became satisfied that the relator had been a violater of the law under which he took the permit. We also think the power to administer oaths may be fairly implied from the section authorizing them to examine witnesses under oath. The proceedings must be affirmed, with costs.

Present-BOCKES, P. J., HARDIN and COUNTRYMAN, JJ.

Proceedings affirmed, with costs.

MELVIN D. WOODFORD, PLAINTIFF IN ERROR, V. THE PEOPLE OF THE STATE OF NEW YORK, DEFENDANTS IN ERROR.

when burning of several buildings may be alleged in same count - duplicity - Evidence.

Where a house was set on fire by the plaintiff in error, and by the fire thus started by him, thirty-five houses were destroyed, held, that he was properly indicted for one offense, and that, if the destruction of every house amounted to the same degree of arson, the indictment need contain but one count, charging the burning of the thirty-five houses.

The counsel for the plaintiff in error insisted that the indictment was void for duplicity, upon the ground that it did not state that there was a human being in each house, but in one only, and therefore joined in one count the offenses of arson in the first, and in the third degree. Upon the trial the people abandoned all claim to convict, except as to one specific house, and the judge charged the jury, that they must find the prisoner guilty of setting fire to that house or acquit him. Held, that the error in the indictment, if any, was cured by the waiver on the part of the people and the charge of the judge. The indictment charged the prisoner with setting fire to the dwelling-houses of certain persons, naming them, and of divers other persons to the jurors unknown, "there being then and there within the said dwelling-houses some human being." Held, that the indictment sufficiently alleged the presence of a human being in each house.

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A few hours before the commencement of the fire in question, a hay barn, situated in the same village, was burned. Upon the trial evidence was received, against the objection and exception of the prisoner, showing that he was seen in the vicinity of the barn shortly before and after it was burned. Held, that the evidence was properly admitted.

The occupant of the house, for the burning of which the plaintiff in error was convicted, was aroused by the alarm before the fire had reached her house; instead of leaving at once she remained a few moments to collect her things, when the fire caught her house. Held, that the prisoner was properly convicted of arson in the first degree.

WRIT of error to the Court of Oyer and Terminer of Madison county, to review the conviction of the plaintiff in error of arson in the first degree. The plaintiff in error was tried and convicted of arson in the first degree, in setting fire to certain dwelling-houses in the village of Canastota. The first count of the indictment charged that the plaintiff in error and one Stone, "on the twenty-seventh day of October, in the year of our Lord one thousand eight hundred and seventy-three, at the town of Lenox in the county of Madison, aforesaid, with force and arms, in the night time of the said day, certain dwelling-houses, the property of the several persons hereinafter named and set forth, to wit: One belonging to Eliza A. Perry, two belonging to Elizabeth Young, one belonging to Mary H. Parker, one belonging to John H. Johnson, one belonging to Matthew Worth, one belonging to Alvin Wells, one belonging to a Mrs. Fay, one belonging to Friend A. Andrews, one belonging to Mrs. John Montross, one belonging to Mrs. Delano, one belonging to David H. Rasbach, and others belonging to divers persons to the jurors unknown, in all about thirty-five dwelling-houses then and there situate (there being then and there within the said dwelling-houses some human being), feloniously, willfully and maliciously did set fire to, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.

The second count charged, "That William A. Stone and Melvin D. Woodford, afterwards, to wit: on the day and in the year aforesaid, at the town of Lenox, in the county of Madison aforesaid, with force and arms, in the night time of the said day, certain dwellinghouses of divers persons and individuals and people to the jury

THIRD DEPARTment, December TERM, 1874.

unknown, and particularly a certain dwelling-house of Eliza A. Perry, one dwelling-house belong to Mary H. Parker, one dwelling-house of David H. Rasbach, and one dwelling-house of Carrie Bond, one dwelling-house known as the Beecher block in Canastota, N. Y., then and there situate, there being then and there within the said dwelling-houses some human being, feloniously, willfully and maliciously did burn, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity."

Wm. James, for the plaintiff in error.

G. A. Forbes, district attorney, for the defendants in error.

LANDON, J.:

The prisoner committed but one act, and its consequences were the destruction of thirty-five dwelling-houses. We think it was proper to indict him as for one offense, and, provided the destruction of every house amounted to the same degree of arson, the indictment need contain but one count.* He should be held to have intended the natural and probable consequences of his wicked act. The wrong done, was done by him, and it was done with a malicious intent. That intent may not have originally embraced all the mischief he produced, and it may have embraced more. The malicious intent being granted, its extent must be gathered from the result, and, in the absence of evidence to the contrary, be held commensurate with it. No man can shelter himself from punishment upon the ground that the mischief he did was wider than he intended. If the description of his crime embraced thirty-five houses, it was because he destroyed so many. If the multitude confused him, he caused the multitude. The people were not obliged to rest with one, since the prisoner had not. The objection to the indictment for duplicity, in charging the burning of thirtyfive houses, was therefore not well taken. For the same reason, the people had the right to give evidence as to the burning of all of them. Regarding the entire fire as one transaction, the burning, condition, situation and occupancy of the several houses, were * Wharton Cr. Law, § 391. Roscoe Cr. Evidence, 271, 272.