Commonwealth v. Calio

• Court: Pennsylvania Superior Court
• Writing for the Court: RENO, J.
• Citation: Commonwealth v. Calio, 155 Pa.Super. 355, 38 A.2d 351 (Pa. Super. Ct. 1944)
• Decision Date: 15 July 1944
• Parties: Commonwealth v. Calio, Appellant

38 A.2d 351

155 Pa.Super. 355

Commonwealth v. Calio, Appellant

Superior Court of Pennsylvania

July 15, 1944

Argued April 24, 1944.

Appeal, No. 30, Oct. 2, 1944, from judgment of Q. S., Phila Co., Nov. Sessions, 1943, No. 86, in case of Commonwealth v James Calio.

Indictment charging defendant with violations of Act of 1933, as amended by Act of 1937. Before Gordon, P. J., without a jury.

Defendant found guilty of a "third offense", and judgment and sentence imposed. Defendant appealed.

Charles S. Schermer, for appellant.

Franklin E. Barr, Asst. District Attorney, with him John H Maurer, District Attorney, for appellee.

Keller P. J., Baldrige, Hirt, Kenworthey and Reno, JJ. (Rhodes and James, JJ., absent).

OPINION

RENO, J.

The Act of May 31, 1933, P. L. 1116, as amended by the Act of June 5, 1937, P. L. 1672, 31 PS § 397, et seq., establishes purity, quality, and sanitary standards to be observed by those engaged in manufacturing and selling ice cream and related products, and the statute makes it unlawful, inter alia, to sell ice cream and water ices containing less than certain required percentages of butter fat and organic acids. Section 9 provides: "Any person . . . violating any of the provisions of this act, . . . shall, for the first or second offense, upon conviction thereof in a summary proceeding, be sentenced to pay a fine . . . and for a third or subsequent offense, shall be guilty of a misdemeanor, and sentenced to pay a fine . . . or, in the case of an individual, . . . to undergo an imprisonment . . . or both, in the discretion of the court. . . ." Appellant was indicted, convicted, and fined as a third offender for selling substandard ices and ice creams, and on this appeal has assigned as error the refusal of his point for binding instructions.

The undisputed facts are that appellant made illegal sales of deficient ice cream and water ice on or about May 14, 1943, and subsequently on June 4 and July 20 of the same year. On June 30, 1943, he was summarily convicted and fined by a magistrate for the sale of June 4, while on September 10, 1943, there was another summary conviction and fine for the offense of May 14. Also on September 10, 1943, he was held for the grand jury as a misdemeanant for the July 20th sale, and this sale was made the basis of the indictment upon which the conviction was obtained. It will be seen, therefore, that the foundation of the prosecution was the third illegal sale, in point of time, which sale was made by appellant after he had been summarily convicted once, but not twice, for his previous infractions. The sole question for decision is presented by appellant's contention that punishment for a third offense cannot be inflicted under the statute unless the offense was not only in fact the third illegal sale but that the sale was also effected after two prior convictions.

The prevailing interpretation given to statutes visiting more severe penalties upon repeated offenders is thus stated in 25 Am. Jur., Habitual Criminals and Subsequent Offenders, § 12: "It is usually essential to the imposition of greater punishment for a second or subsequent offense that there be a conviction or convictions antedating the offense for which sentence is to be imposed. . . . As a general rule, it is a prerequisite that the prior conviction precede the commission of the principal offense, since the statutes are aimed at persons who persist in criminality after having been convicted." The earlier cases in Pennsylvania decided under statutes analagous to the Ice Cream Law establish the prevailing principle in this jurisdiction.

Both defendants in Rauch v. Com., 78 Pa. 490, had made two sales of liquor without a license and one had made an additional sale under the same circumstances. They were indicted under the Act of March 22, 1867, P. L. 40, § 4, which provided that any person making such sales should, "for the first offence, be fined, . . . and for the second shall be fined and imprisoned, &c." in the discretion of the court. The second and third indictments did not allege a former conviction, and on appeal from a sentence of imprisonment the Supreme Court said, in reversing, (p. 495): "But clearly the substantive offence, which draws to itself the greater punishment, is the unlawful sale after a former conviction."

In Com. v. McDermott, 224 Pa. 363, 73 A. 427, reversing Com. v. McDermott, 37 Pa.Super. 1, the defendant was charged with selling colored oleomargerine in violation of the Act of May 29, 1901, P. L. 327, 31 PS § 801, et seq., which provided penalties, in § 7, for first offenses and more severe punishments for convictions of subsequent offenses. Defendant's sentence as a second offender was vacated because the second sale had been consummated after a verdict of guilty, but before a judgment of sentence, for a prior offense of the same nature. In that case the Supreme Court reasoned as follows, (p. 366) "The severer penalty is imposed by the legislature because that imposed for the first offense was ineffectual. The second offense, carrying with it severer penalties is,...