Commonwealth v. Johnston

5 Pa. Super. 585 | Pa. Super. Ct. | 1897

Opinion by

Beaver, J.,

The first five assignments of error, all of which relate to answers of the court to the defendant’s points, have nothing in them worthy of serious consideration. They seem to be abandoned by the defendant in his argument in which he says: “ This case involves questions of evidence mainly supplemented with errors committed by the court in its general charge.” None of the assignments covering the answers to points seem to be dwelt upon or even alluded to, except the sixth. In the latter the court was asked to say: “ The defendant, being by law compelled to employ legal pharmacists and these being accredited and accepted by the commonwealth, he is not charged with either the knowledge or visited with the crime of his clerks,” which was answered by the court as follows: “If the unlawful sales or unlawful furnishing was with the knowledge and consent of the defendant, refused; if without his knowledge and consent, affirmed.” The argument of the defendant upon this branch of the case seems to be that, inasmuch as the commonwealth requires persons who practice pharmacy to pass an examination and secure a certificate of competency in order to qualify for so doing, under the provisions of the Act of the 24th of May, 1887, P. L. 189, and the defendant, in order to carry on the business of pharmacy, being compelled to employ persons certified as competent under the provisions of the said act, he cannot be held liable for violations of the law committed by such employees, even when the law has been violated, not only with his knowledge and consent but by his express directions. The court below properly answered this proposition. If the defendant had been on trial for carrying on the business of pharmacy contrary to the provisions of the act of 1887, supra and its supplements, the fact that he had employed skilled pharmacists whose qualifications were vouched for by the certificate of the Pharmaceutical Examining Board would have protected him from the penalties provided for in said act: Com. v. Johnson, 144 Pa. 377. The certificate of competency as a pharmacist, however, in no way relieves the person holding it from the duty of obeying his employer within the scope of his employment, nor the employer from the penalty of violated law. The relations of a qualified pharmacist to his employer, so fai as the sale of intoxicating drinks is concerned, are in no respect different from what they would have been, if the act of 1887, supra, had never been passed. The answer of the court, therefore, to the defendant’s tenth point was entirely correct. The cases relating to mine bosses relied upon by the defendant have no application whatever to the present case.

The seventh, eighth, ninth and thirteenth assignments of error are not sustained. They all relate in some form to the amount of whisky taken into and sold from the drug store of the defendant. All the testimony relating to that subject, whilst not conclusive as to the guilt of the defendant, was not entirely irrelevant. The defendant was tried upon an indictment containing five counts: the first count, for selling liquor without a license to-an individual named and others unknown; the second and third counts, for selling or furnishing intoxicating liquors to persons therein named on Sunday; the fourth, for selling intoxicating liquors as a druggist without a regular prescription of a regularly registered physician authorizing him so to do; and the fifth, for selling more than once on the same prescription. The possession of the whisky in the defendant’s cellar was the first link which, if connected with other links, would constitute a chain of evidence which would justify his conviction. The possession of poison or ‘of a deadly weapon, although not conclusive as to the guilt of a defendant charged with murder, is, nevertheless, relevant and competent as constituting the first link in a chain which may lead to a conviction. It is no answer to evidence that it does not prove the plaintiff’s whole case. If it is a link in the chain of the evidence afterwards to be given, it is admissible: Johnston v. Warden, 3 Watts, 101; Haughey v. Strickler, 2 W. & S. 411. “It is not necessary that the relevancy of testimony should appear at the time, when it is offered, it being the usual course to receive at any proper and convenient stage of the trial, in the discretion of the judge, any evidence which the counsel shows will be rendered material by other evidence which he undertakes to produce. If it is not subsequently thus connected with the issue, it is to be laid out of the case: ” 1 Greenleaf (11th ed.), sec. 51.

The tenth, eleventh and twelfth assignments of error must be sustained. Three druggists doing business in the same town with the defendant were called to testify as to the amount of liquor required in the business in which they were concerned respectively, the following formal offer being made in relation thereto: “ It is proposed to prove by the witness on the stand and others in a similar position that in running a legitimate drug business one barrel of liquor does a year or about that— a larger business than was conducted by Dr. Johnston — and that Dr. Johnston during five months, as testified by the witnesses here, consumed a barrel a month in his business.” Two of the witnesses testified that in their business they consumed each about one barrel in twelve months. The third witness, however, Mr. Balph, testified that he used about fifteen or twenty gallons per year. It is very plain that, if the testimony of these three witnesses was competent to affect the rights of the defendant, on the same principle Balph’s testimony would have convicted the other two who sold twice as much as he did. No fixed standard as to what constitutes a legitimate business was shown or can be shown, and for this reason all the testimony upon this subject was both incompetent and irrelevant and should have been excluded. In the manufacture of proprietary medicines a druggist doing a legitimate business might use five times as much whisky as one who did an illegitimate business.

As to the testimony of Reiseman, complained of in the fourteenth assignment, it was stricken out by the court subsequently as erroneous, which it certainly was. The rights of the defendant would have been better guarded, if the testimony had not been admitted; but, having been admitted, the court did the best in its power to remedy the fault. We cannot see that the defendant suffered materially, as the case was finally submitted to the jury. ' .

The sixteenth assignment of error is not sustained. The defendant’s knowledge of sales made on Sunday was a fact. The witness may have known the fact by the presence of the defendant at the time the sale was made, by his declarations as to knowledge, and in other ways. As to the manner in which he acquired the knowledge, the defendant had the right to cross-examine him. The testimony, so far as it went, was entirely proper.

The seventeenth assignment of error is not presented to us in accordance with our rules. The letter referred to is not printed nor do we have any intimation in the assignment itself where it can be found. It is, therefore, overruled.

In the portion of the charge embraced in the eighteenth assignment of error the trial judge invades the province of the jury. He states as a fact that there has been great violation of the law in this drug store by somebody. This was an important step in fixing the guilt upon the defendant. The most that could be judicially said upon that subject was that, if certain of the witnesses who had testified to sales made there were believed, the law had been violated; but the credence to be given to the testimony of all witnesses is for the jury.

■ The part of the charge complained of in the nineteenth assignment of error is open to the objection made thereto by the appellant. It has something of the appearance of a certificate of character of the witnesses for the commonwealth who, if their testimony was believed, were themselves undoubtedly guilty of a violation of law, and the manner in which their testimony is commented upon tends undoubtedly to minimize that of the defendant, but. we are not prepared to say that the latitude allowed to the court in commenting upon the evidence of both sides has been transgressed in such a way as to constitute reversible error, if this assignment contained the only error complained of.

The part of the charge embraced in the 20th assignment covers the same question involved in the answer to the defendant’s fifth point. The instruction was correct and the assignment is overruled.

The part of the general charge complained of in the 21st assignment is an effort to qualify'the purposes for which the testimony complained of in the seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fifteenth assignments of error was admitted. The purpose for which this testimony was admitted is stated by the court to be twofold': first, for the purpose of settling the question of veracity between the witnesses and the defendant, and secondly, “for the purpose of determin ing as near as you can the Doctor’s intention.” It is to be observed that this testimony was all received during the presentation of the commonwealth’s case in chief. It could not. therefore, have been introduced for the purpose of testing the veracity of the defendant. The court, however, says: “ If Dr. Johnston had not gone on the stand, we would have ruled out all this testimony, because it does not affect this case only so far as it may lead you to get a correct conclusion as to who is telling the truth.” The testimony should not have been admitted in anticipation of the defendant’s taking the stand. He had a right to do so or to refrain from doing so. If he took the stand and did not deny the testimony of the witnesses, no light would be thrown upon the question of his veracity and the prejudice of the jury against the defendant greatly aroused. As a matter of fact, the defendant did not deny the amount of liquor which went into his store nor did he seriously controvert the testimony of the witnesses as to the amount that was sold. There was, therefore, no question of veracity between them and the testimony admitted threw no light upon the subject. Nor was the testimony admitted any evidence of a wrongful intention on the part of the defendant. The fact that he purchased any number of barrels of whisky was no evidence that he intended to sell them in any given time. The court distinctly says that “ The fact that it was there was of no account at all so far as unlawful sales are made, if not by him or his clerks, by his authority, but you can use it for the purpose of determining as near as you can the doctor’s intention.” How could the mere presence of a number of barrels of whisky in his cellar be an evidence of' the intention on the part of the defendant to sell it more rapidly than did his neighbors who confined their sales to a barrel a year? In regard to the testimony of the neighboring druggists, the court sa)^: “We also allowed Dr. Redick and Mr. Boyd and Mr. Ba-lph to testify as to their sales. You recollect what they said, and we think you have a right to consider this in coming to the determination whether or not the Doctor, as a business man, a careful man, an honest man, would not know from the large amount of sales whether or not his clerks were acting lawfully and only for that purpose.” There is no evidence whatever that the defendant had knowledge of the amount sold by these druggists or that there was any recognized, fixed standard of the amount that a drug store, doing a legitimate business, should sell. How then could the amount sold by them determine in his mind what should be sold by his clerks ? The only view of this ease in which any of this testimony was legal evidence is the one pointed out in our remarks upon the seventh, eighth, ninth and thirteenth assignments of error.

The twenty-second assignment has been sufficiently passed upon by what we have already said in regard to the specific parts of the charge complained of. For the reasons stated, we are forced to the conclusion that the case must be retried.

The judgment is reversed and a new venire awarded.