Commonwealth v. Spence

43 Pa. Super. 7 | Pa. Super. Ct. | 1910

Opinion by

Beaver, J.,

The appellant states the question involved after this fashion: “Has the Court of Quarter Sessions power to grant a retail liquor license and limit the license to the sale of vinous, malt and brewed liquors? ” If we answer this question in the affirmative, the appellant got precisely what he asked for and was properly convicted for the sale of spirituous liquors for which he had no license. If we answer it in the negative, he had no license of any kind and was, therefore, even more properly, if such a thing be possible, convicted.

The defendant presented his petition to the court of quarter sessions of Chester county, praying for a license “for one year from April 1, 1909, for the sale of vinous, malt and brewed liquors, by retail, in quantities not exceeding one quart, at the place above described,” which was, as stated in the petition, “Spence’s Restaurant.” The petition was in the usual printed form. Wherever the word spirituous occurred, however, it was stricken out, as it was in the bond which accompanied the petition. The decree upon the petition was: “Now March 1, 1909, after hearing, the license as prayed for is granted.” The defendant was indicted for selling and causing to be sold “certain vinous, spirituous, malt and brewed liquors, and an admixture thereof, without having first obtained license, agreeably to law, for that purpose, contrary to the form of the act,” etc.

The testimony taken at the trial is not printed in the appellant’s paper-book. We learn from his history of the case, however, that “it was shown upon the trial that the appellant, pursuant to his license, had sold ‘Bitters,’ which was to some degree a spirituous liquor,” and in the paper-book of the appellee it is said that the “Bitters” referred to' was a low grade of whiskey sold over his bar.

As we understand the facts of the case, the appellant, although charged in the indictment with selling certain vinous, spirituous, malt and brewed liquors, the testimony of the commonwealth relating to spirituous liquors only, was convicted solely of that offense.

The appellant, in his argument, says: “An examination of the petition and of the court’s order thereon shows, however, that the court undertook to limit or restrict the license to the sale of vinous, malt and brewed liquors,” and argues the question as growing out of this statement: “Not the license but this restriction, it is respectfully submitted, was void, and the licensee had the right to sell spirituous as well as malt and brewed liquors.” The appellant here attempts to put the court granting the license in a false position. The court made no restriction whatever. It granted a license “as prayed for.” Whether the court had a right to grant such a license under the authority of the Brooks law of 1887, under the principle that the greater includes the less, is one which we do not now consider, and whether or not the license so granted was void is also outside of this case, as we regard it. This was not a case of restriction imposed by judicial legislation. If restriction was valid, it was only imposed upon the appellant by himself, in which the court acquiesced. There was no decree as to the amount of the license fee to be paid. That was an entirely separate and distinct transaction between the appellant and the county treasurer. What that license fee was we are not informed, because, as previously stated, the testimony is not printed. That, however, was a question with which the court had nothing to do. The alleged hardship of which the appellant complains is, therefore, not in the case, so far as the court is concerned, and it is idle for him to say that, “It is the height of injustice to impose upon him (the appellant) a large fine, sentence him to prison, and take away his license, and thus destroy the business which he has been building up for some forty years.” This is not only unfair, but it is not correct. The business which he has built up, as appears by his own showing, was under just such a license as the court granted.

The court, in dismissing the rule for a new trial and the motion in arrest of judgment, has filed an opinion covering the facts of the case which we can gather from no other source, as the paper-book is made up, and it will, therefore, be well to print that opinion in connection with the report of the case.

Judgment affirmed and record remitted to the court below to the end that the sentence of the court may be fully carried into effect.