88 Pa. Super. 93 | Pa. Super. Ct. | 1926
Argued March 8, 1926. The defendant was indicted under the provisions of the Act of May 27, 1923, P.L. 34, for the unlawful possession of a quantity of intoxicating liquor for beverage purposes. He entered formal pleas of former conviction and not guilty. The trial resulted in a verdict of guilty and sentence thereon, from which judgment the defendant appeals.
The indictment charged the offense to have been committed on June 6, 1925. The Commonwealth produced evidence establishing that, on March 24, 1925, police officers, under a search warrant duly issued, made a search of the defendant's premises and there found large quantities of liquor, of assorted varieties, a large part of which was ingeniously concealed under the floor of a garage. The defendant was examined in his own behalf and testified that prior to September 15, 1923, he had been engaged in the "bootlegging" business, buying and selling intoxicating liquors for beverage purposes in violation of law; that all of the liquor which was found on his premises by the officers, on March 24, 1925, being the liquor referred to in the present indictment, had been in the possession of the defendant since prior to September, 1923; that he had, in September, 1923, been charged in an indictment with unlawfully transporting, possessing and offering for sale intoxicating liquors for beverage purposes, to which indictment he had entered a plea of guilty, upon which plea sentence had been imposed and he had served three months in jail. He testified that, in September, 1923, a couple of men came to him to make a deal, in liquor, to Lancaster County, that this liquor which they got from him was sold "over there" and this was reported to the state police and the state police got the liquor and that was why he was arrested, in 1923. He testified further that the police did not at that time search his premises and thus a large quantity of liquor *96 which he then had on hands escaped detection. With regard to the liquor involved in the present case he testified: "After I was arrested (in September 1923) I was afraid to do anything and I didn't do anything, and I went and put the liquor away, and when I plead guilty in the case I was convicted and sentenced, and that was lying there ever since." He admitted, however, that he had subsequently to September, 1923, removed a large quantity of the liquor from the cellar of his residence and stored it in the receptacle under the floor of the garage, subsequently built. The Commonwealth produced testimony in rebuttal showing that a part of the whisky had pasted upon the bottles labels showing that the liquor had been bottled in 1924, whereupon it was formally admitted on behalf of the defendant that some of the bottles did so show.
The court, after explaining to the jury the meaning of the pleas of former conviction and not guilty, briefly reviewed the evidence presented by the Commonwealth and the testimony on behalf of the defendant, and concluded the charge by saying: "So that you will answer the two questions in this way: First, he was never heretofore convicted of the possession of the present lot of liquor, and, Second, that he is guilty in this case in manner and form as he stands indicted. The clerk will take the verdict." The verdict was thereupon taken in accordance with this instruction and sentence was imposed. The above quoted instruction is assigned for error. The former conviction, pleaded in bar of the present prosecution, charged the unlawful possession of intoxicating liquor for beverage purposes on September 8, 1923. The indictment in the present case charged a like offense to have been committed on June 6, 1925. The plea of former conviction, or acquittal, raises the question of the identity of both the parties and the offenses, and the burden is upon the defendant to establish that identity. When *97
there is no dispute as to the facts, the court determines, as of law, whether or not there has been a previous conviction or acquittal: Bishop's Criminal Procedure, sect. 816; Commonwealth v. Montross,
The action of the court in giving binding instructions to the jury to find the defendant guilty, presents an entirely different question. The instruction was peremptory, and the clerk was directed to take the verdict in accordance with that instruction. It is not competent for the court in a criminal case to instruct *98
the jury peremptorily to find the accused guilty of the offense charged or of any criminal offense less than that charged: Hanson v. United States,
The judgment is reversed and a new trial awarded.