Commonwealth v. Terry

15 Pa. Super. 608 | Pa. Super. Ct. | 1901

Opinion by

Beaveb, J.,

Although the specifications of error in this case are somewhat numerous, practically a single question is involved, namely, does the Act of May 25, 1897, P. L. 93, “relating to the prosecutions of licensed dealers and their employees on the charge of furnishing intoxicating liquors to minors and prescribing the penalty therefor ” impose a burden upon a defendant which he is. not bound to assume ? Prior to the passage of this act a defendant indicted for furnishing liquor to minors was not permitted to show that the act was not done negligently or wilfully. It was ordinarily enough for the commonwealth to show that the liquor had been furnished and that the person to whom it was furnished was a minor, to establish the guilt of the defendant. The act of 1897, above referred to, recognizing the statutory offense as already existing, provided in the interest of a defendant, that he “ shall be permitted to offer by way of defense evidence of the circumstances under which the liquor was furnished; and, if it appear that it was furnished know-ingly or negligently, the defendant shall be deemed guilty of a misdemeanor.” This proviso was added: “ That the burden of proof shall rest upon the defendant to show that the intoxicating liquor was not furnished to a minor either knowingly or negligently.” This act is in itself a distinct recognition of the offense prescribed in the 17th section of the Act of May 13, 1887, P. L. 108, known as the Brooks law. The later act does not change the offense nor add thereto any necessary ingredients. The offense would be complete, if a furnishing by sale, gift or otherwise were shown by a licensed vendor or one without a license to a minor, without more. If, however, the defendant chooses to give in evidence the circumstances under which the liquor was furnished and in doing so it should appear affirmatively that it was negligently or knowingly furnished, although the minimum penalty prescribed in the act of 1887 is taken away, the maximum penalty remains precisely the same. The latter act is not, therefore, in any sense a repeal of the former. It is based upon it. It is doubtful whether the proviso to the act imposes any burden upon the defendant which he is not bound to assume under its other provisions. It simply makes clear what was evidently in the mind of the legislature, namely, that the defendant should be permitted to show as a defense that he did not negligently or knowingly furnish liquor to a minor. The act does not import any new elements into the offense itself. It simply says to the defendant, you may give the circumstances surrounding the transaction in evidence, but in doing so you assume the risk of making it appear affirmatively that the act was negligently and knowingly done, and the burden of proving that it was not so done is upon you. This was clearly in the interest of the defendant. He is not bound in any way to assume the risk which is involved in this defense; but, if he chooses to do so, he must, of course, assume, with the privilege conferred by the act, the obligation which it imposes. This involves no change of the general rule that it is incumbent upon the commonwealth to show the guilt of the defendant beyond a reasonable doubt. It casts no burden upon the defendant, except what he voluntarily assumes. It follows that the court could not have answered the defendant’s points otherwise than it did.

We see no error in the portion of the charge complained of in the third specification. If the appearance of the boys, as they are called, of itself indicated that they were minors, and this was left to the jury to determine, the sale, without inquiry on the part of the defendant as to age was, of course, a negligent sale. It could not be otherwise. The jury was to determine, however, whether their appearance indicated their minority. The case was in the main fairly tried and the defendant, as the record shows, was properly convicted.

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