Commonwealth v. Saab, Appeal, No. 74

Appeal, No. 74 | Pa. Super. Ct. | Mar 5, 1921

Opinion by

Henderson, J.,

The defendant was indicted with Mike Mondalek for selling liquor without license. In an opinion now filed, we have dismissed the exceptions in the appeal of Mike Mondalek and affirmed the judgment. All of the questions raised by the appellant are disposed of in that' opinion except that in the sixth assignment in which exception is taken to the refusal of the court to affirm the defendant’s point that under all the evidence the defendant, Mary Mondalek, alias Mary Saab, “she being the wife of Mike Mondalek, on the charge of misdemeanor under the evidence cannot be convicted.” The evidence shows that the defendants were engaged in carrying on a grocery and confectionery business. This appellant had conducted the business for nearly twenty years when she married Mike Mondalek a few months before the sales out of which the prosecution arose. After the marriage she and Mondalek carried on the business together. They sold Jamaica ginger and sales were made by a clerk in the store in the presence of the appellant. The presumption that the wife acted under the compulsion of her husband was sufficiently rebutted by the evidence of ownership and the manner in which the business was carried on. Sales by the clerk would be attributable to the appellant as well as to her husband as owners of the business, and the appellant made many sales on her own initiative so far as one may judge from the testimony. The question was one for the jury under any view of the case, and the court would have erred in giving- binding instructions on that point. All of the assignments have been considered and are overruled. The judgment is affirmed, and the record remitted to the court below. And it is ordered that the defendant appear in that court at such time as she may be there called and that she be by that court committed until she has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.