Commonwealth v. Pendergast

138 Pa. 633 | Pa. | 1891

OPINION,

Mr. Chief Justice Páxson :

The defendant was convicted in the court below upon two indictments, one charging him with selling liquor without a license, and the other with selling to persons of known intemperate habits. An appeal was taken in each case, but, as no error is assigned in the last case, No. 187 of this court, No. 21 in the court below, we affirm that case without comment. Most of the questions involved have been disposed of in the cases of Commonwealth v. Zelt, ante, 615, and Commonwealth v. Swihart, ante, 629, decided at this term upon appeals from the same court.

Complaint is made in the first three assignments that the court below erred in submitting to the jury the question whether the defendant was a bona fide agent of P. Gavin, of Wheeling, W. Va., to sell the liquor in question, and in the comments of the court upon this question in the charge to the jury. It was alleged that “ there was positive evidence that defendant was such agent in good faith, and no evidence whatever to contradict it.” The only evidence in the case was the statement of the defendant himself. He testified to the agency, but was wholly unsupported. His principal was not called, nor does any effort appear to have been made to procure his attendance at the trial. The defendant was not bound, as a matter of law to produce him, but his absence left his testimony unsupported, and, the evidence being q^al, it was for the jury to pass upon its credibility. Aside from this, the defendant testified that he had written authority from his principal to act as his agent, yet the writing was not produced. Strictly speaking, he had no right to testify to the contents of this paper; it should have been produced, so that the court and jury could judge of its force and effect. The non-production of this paper was a grave omission, and justified all the learned judge said about it; and, moreover, justified the jury in the conclusion that this defence was not set up in good faith. The fourth assignment does not conform to our rules, and the fifth is disposed of by what was said in the cases above referred to.

The judgment is affirmed, in each case; and it is now ordered that the defendant surrender himself to the custody of the high sheriff of Washington county, for confinement in accordance with the sentence of the court below.