On writ of error to the Court of Special Sessions of the County of Passaic.
For the plaintiff in error, Nicholas Martini.
For the defendant in error, Manfield G. Amlicke.
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
DONGES, J. Plaintiff in error was indicted by the grand jury of Passaic County, with one Rocco Cuva upon a charge that he "unlawfully did transport, for sale, eight gallons of a certain illicit alcoholic beverage, suitable for human consumption, and having an alcoholic content of more than one half of one per cent. by volume, the kegs, barrels, cans, bottles, flasks and containers, wherein said alcoholic beverage was then and there contained, not then and there bearing any stamps or stamp, labels or label, or other indicia of payment of tax as is required by the laws of the United States and the State of New Jersey."
After a plea of "not guilty," the plaintiff in error waived his right to a trial by jury and came on for trial before Judge Alexander M. MacLeod in the Court of Special Sessions.
The testimony is not before us, but upon an "Agreed State of Facts," it appears that plaintiff in error admitted the transportation of eight gallon jugs of wine, as charged, and "that the eight gallon jugs of wine did not bear any labels." It was testified that the containers bore no labels or tax stamps.
Plaintiff in error testified that he brought the jugs up from his cellar "in containers to which he affixed the required amount of federal and state revenue stamps; that he had sealed the containers prior to removal from the bonded winery; that he had carried the containers containing the said eight one gallon jugs of wine upstairs to his store where he sold the wine at retail; that he opened the containers and removed the eight one gallon jugs therefrom, cancelling the revenue stamps at the same time; that he placed the eight one gallon jugs on his counter; that his daughter usually affixed labels bearing his name, address and notation of tax payment." He testified that one Cuva came in and said he wanted eight gallons of wine "in a hurry" for a party; that plaintiff in gallons of wine "in a furry" for a party; that plaintiff in error informed him he was busy and did not make deliveries, whereupon Cuva went into the store and carried out two containers, each holding four one gallon jugs of wine and put them in Cannizzaro's car, whereupon Cannizzaro drove it to the address of the purchaser; that plaintiff in error carried one container into the restaurant and Cuva Carried one;
that he then saw an A.B.C. man in the restaurant, who thereupon opened the containers and removed the jugs therefrom, and that plaintiff in error for the first time noticed that the jugs contained no labels. That the jugs had no labels was admitted by plaintiff in error.
R.S. 33:1-88 (Supplement of Pamph. L. 1939, ch. 177) provides that:
"Any alcoholic beverage in any keg, barrel, can, bottle, flask or similar container shall, in any proceeding under the chapter which this act supplements, be deemed prima facie an illicit beverage where the container (1) does not bear any label describing its contents, or (2) bears a label which does not truly describe its contents, or (3) does not bear such indicia ...