9 A.2d 169 | Pa. Super. Ct. | 1939
Argued September 25, 1939.
Defendant, holder of a retail restaurant liquor license issued by the Pennsylvania Liquor Control Board, entered a plea of nolo contendere to an indictment1 charging her with selling liquor intended for consumption off the licensed premises, and the plea was accepted *477
by the court. By her plea defendant admitted the sale as alleged in the indictment, so far as concerns the proceedings upon the indictment. Buck v. Commonwealth,
Defendant was placed on probation for one year upon condition that she pay the costs.2 Thereafter her counsel filed a motion to vacate the "sentence"3 imposed, and to refund to defendant the costs paid by her. A rule to show cause was granted. This rule the court below made absolute upon the ground that the Pennsylvania Liquor Control Act of November 29, 1933, P.L. 15, Sp. Sess., as reenacted and amended July 18, 1935, P.L. 1246; June 16, 1937, P.L. 1762, 47 P. S. § 744 — 1 et seq., made no provision or prohibition except by implication for sales of liquor to be consumed off the licensed premises, and therefore, although such a sale might be sufficient reason for the revocation of the license, it did not constitute an indictable offense.
The Commonwealth has appealed, and we are confronted with the question of its right to do so. We think that the order of the court below was like, similar to, or the equivalent of, quashing the indictment or arresting judgment, as the court held that the facts alleged by the Commonwealth in the indictment did not *478
constitute an indictable offense. This was a ruling which is against the Commonwealth on a pure question of law, and no issues of fact are involved. This situation is to be distinguished from that where the Commonwealth, after an acquittal, attempts to base an appeal upon errors committed in the course of the trial. Under such circumstances, an appeal by the Commonwealth does not lie, except in cases of nuisance or forcible entry and detainer, or forcible detainer as provided by the Act of May 19, 1874, P.L. 219, § 1, 19 P. S. § 1188. See Com. v. Kroekel,
In view of this language we are of the opinion that the present appeal is properly before us, and that the order of the court below may be reviewed by us on this appeal by the Commonwealth.
This brings us to the principal issue which is whether a restaurant licensee who sells liquor for consumption off the premises violates the Pennsylvania Liquor Control Act, supra, and thus commits an indictable offense.
Article 4, § 411, of said act, 47 P. S. § 744 — 411, in so far as it is applicable to the facts of this case, provides as follows: "Every . . . . . . restaurant . . . . . . licensee may sell liquor . . . . . . by the glass, open bottle or other container, and in any mixture for consumption only in that part of the . . . . . . restaurant habitually used for the serving of food to guests or patrons. . . . . ."
Counsel for appellee contends that neither this section nor any other section of the Pennsylvania Liquor Control Act, supra, contains a prohibition against the sale of liquor by a restaurant licensee for consumption off the premises. This argument ignores paragraph (1) of section 602 of said act, 47 P. S. § 744 — 602 (1), which provides: "Except as provided in this act, it shall be unlawful for any person, by himself, or by an employe or agent, to expose or keep for sale, or directly or indirectly or upon any pretense, or upon any device, to sell, or offer to sell, any liquor within this Commonwealth. . . . . ." The effect of this portion of paragraph (1) of section 602, supra, is to render the sale of liquor prima facie unlawful, and it ceases to be unlawful only when the sale takes place in some manner authorized by the act. See Com. v. Williams,
We find no merit in the argument of appellee's counsel to the effect that the word "only" in that part of section 411 above quoted applies to sales of liquor intended to be consumed on the premises and merely limits the place or places where the purchaser may consume the liquor on the premises. The same comment applies to his further contention that said word "only" must be restricted to the clause in which it appears, *481
namely, "and in any mixture for consumption." We are aware that in the present case we are considering the statute in question in its criminal aspect, and that in so doing we are to be governed by the rule that criminal statutes are to be strictly construed. However, as we said in Com. v. Gahagan,
As to the contention that the word "only" applies merely to "and in any mixture for consumption" because of the comma preceding the word "and," it is only necessary to say that punctuation cannot be permitted to defeat the purpose which the legislature clearly sought to accomplish.
Punctuation does not require us to ignore the obvious legislative intent and reach an absurd result. Bills passed by the legislature are not punctuated. As was said in Com. v. Shopp,
1 Woodward 123, at page 130: "The marks of punctuation are added subsequently by a clerk or a compositor, and this duty is performed very frequently in an exceedingly capricious and novel way." In Com. v. Reimel,
We are all of the opinion that the sale of liquor by defendant, a restaurant licensee, for consumption off the licensed premises as set forth in the indictment, constitutes a violation of the provisions of the Pennsylvania Liquor Control Act, supra, and is an indictable offense punishable as provided in section 610 of that act, 47 P. S. § 744 — 610.
The order of the court below is reversed, and the order of the court suspending sentence and placing defendant on probation, conditioned upon the payment of costs, is reinstated.