Commonwealth v. Loesch, 153 Pa. 502

Commonwealth v. Loesch

153 Pa. 502 | Pa. | 1893

Opinion by

Mr. Justice Williams,

There is no real inconsistency between the answer of the court below to the defendant’s point, and the general charge. The point asserted that the uncontradicted evidence established certain facts, viz.: that the defendant was a member of the Germania Turnverein ; that this society was organized in good faith and for certain lawful purposes, and was the owner of a valuable club house ; that it was holding its annual picnic on Sunday, May 29, 1892, in Montgomery county; and that the act of the defendant was the sale of tickets on that day to fellow members which were to be used in payment for meals, for lager beer, or for admission to the games and amusements on the ground. Upon these facts it asked the court to say as matter of law that the sale of the tickets was not an infraction of the law and that the verdict of the jury should be “ not guilty.” The learned judge affirmed this point. But the commonwealth alleged that the defendant sold these tickets to persons who were not members of the society, and it was for this that his conviction was asked. This was the controverted question of fact upon which evidence was given by both parties, and to which it was the duty of the learned judge to direct the attention of the jury. He said: “ When the defendant undertakes *507to sell to a particular class, he must see that he does not sell to a prohibited class; ” and then, after calling attention to restrictions placed by the law upon licensed dealers, he added: “ So here, the defendant could not sell to persons not members of the society; if he sold to them he is liable, for it is his business to know whether the person is entitled to buy.” This instruction is clearly right. It would have been better if the learned judge had qualified his affirmance of the point by calling the attention of the jury directly to this disputed question, but the defendant cannot complain that he did not. By so much as the unqualified affirmance imported beyond the rule laid down in the general charge, it was more favorable to the defendant than he had a right to ask. The error, if any, was in his favor and he was not injured by it.

We do not consider the question of the right of a society to sell liquors to its members at a profit, for it is not raised on this record. The defendant’s case was submitted to the jury upon a single question of fact: Did he sell the tickets exchangeable for beer, among other things, to persons who were not members of the Germania Turnverein ? If he did, the jury was told that he might properly be convicted. If he did not, they were plainly instructed that their verdict should be one of not guilty. Upon this question their finding was against the defendant. The verdict convicts him not of selling to his fellow members but of selling to other persons.

No more favorable mode of submitting his case could have been adopted; and if injustice has been done by the verdict it is not chargeable to the instructions given by the learned judge.

If the jury have reached a wrong conclusion from the evidence before them, the remedy is in the court below by motion for a new trial.

The judgment of the court below is affirmed.