Commonwealth v. Hess

• Decision Date: 28 March 1892
• Docket Number: 75,74
• Citation: 148 Pa. 98,23 A. 977
• Parties: Commonwealth v. Hess, Appellant; Commonwealth v. Ginader, Appellant
• Court: Pennsylvania Supreme Court

23 A. 977

148 Pa. 98

Commonwealth v. Hess, Appellant;

Commonwealth v. Ginader, Appellant

Nos. 74, 75

Supreme Court of Pennsylvania

March 28, 1892

Argued February 4, 1892

148 Pa. 98 at 110.

Appeals Nos. 74 and 75, Jan. T., 1892, by defendants, Francis Hess and George Ginader, from judgments of Q.S. Montgomery Co Oct. T., 1891, Nos. 52 and 50.

Indictments for selling liquor without a license.

The facts and the charge of the court, SWARTZ, P.J., appear by the opinion of the Supreme Court. The defendants, though separately indicted, were tried together.

Verdict guilty and judgment thereon. Defendants appealed.

Errors assigned were (1) the charge of the court, quoting it; (2) entering judgment in favor of the commonwealth and against the defendants, upon the verdict returned under the agreed facts and the charge thereupon.

Judgment reversed.

N. H. Larzelere, with him M. M. Gibson, for appellants. -- The question is whether the liquor laws are to be interpreted in harmony with the natural laws of commerce and business, or contrary thereto. The distinction between wholesalers and retailers was clearly drawn in Pollard's Application, 24 W.N.C. 181.

These sales were complete in Philadelphia for every purpose, civil and criminal, save, perhaps, for the protection of creditors and innocent purchasers: 3 Am. & Eng. Enc. of Law, 844; Benjamin on Sales, 357, 329; Frazier v. Simmonds, 139 Mass. 535; Leonard v. Davis, 1 Black, 476; Story on Sales, 338 note; Dixon v. Yeates, 5 B. & Ad. 313, 340; Willis v. Willis, 6 Dana (Ky.) 48; Dows v. Morse, 17 N.W.R. 495; Newhall v. Langdon, 39 Ohio St. 87; Levasseur v. Carey, 3 A. 461; Garbracht v. Com., 96 Pa. 452; Stephens v. Gifford, 27 W.N.C. 30.

Actual delivery or actual change of possession are neither essential to pass the right of property and the right of possession, and when the latter concur, the contract as between the parties is executed. Even though the seller deliver where it is the custom and usage of trade, the title has passed regardless of such delivery: Benjamin on Sales, 336, 882.

Criminal statutes are to be construed strictly in those parts which are against defendants, but liberally in those which are in their favor. No persons can be made subject to such statutes by implication, and where doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused: State v. Bryant, 7 West. Rep. 748; U.S. v. Wiltberger, 5 Wheat. 76; Com. v. Fleming, 25 W.N.C. 126.

B. E. Chain, Henry M. Brownback, district attorney, with him, for appellee. -- The sole question in this case is where did the sales of the liquors in question take place. This is not a new question in this state, and has been decided in several cases, both before and since the act of 1887: Garbracht v. Com., 96 Pa. 449; 1 Penny. 471; Stewart v. Com., 117 Pa. 378; Com. v. Fleming, 130 Pa. 156; Com. v. Holstine, 132 Pa. 357; Com. v. Greenfield, 121 Mass. 40.

A man may not make a common carrier of himself for the purpose of delivering his own liquors; nor can the purchaser constitute the seller a common carrier, or his agent, for the same purpose. The liquor remained in the possession of the appellants in Hess' own wagon, with other liquors they were then delivering to other customers, until they had been set down at the hotels of Cottman and Wilson. The general rule is that an executory contract of sale without delivery does not pass the title: Lester v. McDowell, 18 Pa. 91; Winslow v. Leonard, 24 Pa. 14; Sneathen v. Grubb, 88 Pa. 147; Oil Co. v. Hughey, 56 Pa. 322; Fry v. Lucas, 29 Pa. 356; McCandlish v. Newman, 22 Pa. 460; Scott v. Wells, 6 W. & S. 357; Bigley v. Risher, 63 Pa. 152; Nicholson v. Taylor, 31 Pa. 128; Nesbit v. Burry, 25 Pa. 208; Story on Sales, sec. 296; Benjamin on Sales, 334.

When persons engage in the unlawful sales of liquor, they do so at their peril, and when they violate the law, it is not a question of intention: Com. v. Sellers, 130 Pa. 32: Com. v. Holstine, 132 Pa. 357; In re Carlson's License, 127 Pa. 330 Zinner v. Com., 22 W.N.C. 97.

The driver, Ginader, is equally guilty with the principal, Hess, having participated in the sales and delivery of the liquors: Com. v. Holstine, supra.

Before PAXSON, C.J., GREEN, McCOLLUM, MITCHELL and HEYDRICK, JJ.

OPINION

MR. CHIEF JUSTICE PAXSON:

The defendant was convicted in the court below of selling liquor without a license. The whole case is developed by the specification of error, which is as follows:

"The court erred in its charge to the jury upon the following facts in the case, the whole of which charge is specified as error, and which is as follows: 'Upon the uncontradicted facts as established by the commonwealth, and not denied by the defence, which are as follows: Francis Hess has a bottler's license in the city of Philadelphia, doing business at No. 2440 Mascher street, in said city; for some time within two years, and prior to June 1, 1891, Frank Cottman, a licensed hotel keeper at Jenkintown, Montgomery county, Pennsylvania, sent to Hess' place of business in Philadelphia, orders from week to week for lager beer and porter, the whole amount of said orders being about $175; that upon the receipt of said orders by Hess, the material ordered was set apart and charged to Cottman upon the books of Hess, and was then loaded upon Hess' delivery wagon, and by him and an employee, named George Ginader, driven to Jenkintown, in Montgomery county, and delivered to Cottman; bills were afterwards made out and sent to Cottman, who paid them either by checks sent to Philadelphia, or in cash paid in person at the place of business of Hess in Philadelphia, after the delivery was made to Cottman at his place of business.

"'A similar transaction took place between said Francis Hess and George Ginader and Henry J. Wilson, a keeper of a licensed hotel at Hatboro, Montgomery county, on six to eight occasions in the months of April and May, 1891; there were also orders of Cottman and Wilson filled by shipment by railroad to Jenkintown and Hatboro; Hess had no license from the court of Montgomery county.'

"The court is respectfully asked to charge the jury that there were no violations of the liquor laws as set out in said bill of indictment, and the verdict of the jury must be not guilty.

"The Court: Gentleman of the jury, I cannot instruct you as requested. The defendant undertook to deliver by the wagon of Hess, and the sale was completed in this county. If you find the facts as set forth in the above request, I charge you that they show a violation of the liquor laws as set forth and charged in the bill of indictment.

"I instruct you, however, as requested, that you are the judges of the law as well as of the facts, under the advice and direction of the court. You are to look to the court for the best evidence of the law, just as you are to look to the witnesses for the best evidence of the facts."

It must be conceded at the outset that the defendant was pursuing a lawful business. It is not only expressly authorized by law, but he has paid a large sum of money for the privilege of carrying it on. It was not denied, and could not well be, under the act of assembly, and our decisions thereon, that he has a right to sell his liquors at wholesale, not only to customers in the city of Philadelphia, but throughout the state, and the country at large. It is well known that the business of wholesale dealers is not limited to any particular locality, but extends in many instances over many portions of the civilized world. In the case of wholesale dealers in liquor, they are restrained by the statute and the terms of their license to sales in the county in which their license was granted. It does not follow, however, and it is not the law, that their sales are limited to persons residing in said county. It is not denied, and it is settled law, that the defendant may sell to any retail dealer in any part of the commonwealth, provided the sales are made at his place of business in the county of Philadelphia. Such sales may be made in the usual course of business. It is not necessary that a retail dealer from an adjoining county should call at the place of business of the wholesale dealer, in the county of Philadelphia, in order to make his purchase. He may order his goods by mail as in other cases. When the law licensed the wholesale dealer to carry on his business in the county of Philadelphia, it carried with it the authority to conduct it according to the usual mode of business, but it does not justify him in peddling his goods around in other counties and selling them there. So much was decided in Com. v. Holstine, 132 Pa. 357, where it was held that the driver in the employ of a bottler, having a license in Philadelphia county, who took orders in Montgomery county for liquors, which were subsequently loaded upon the defendant's wagon in Philadelphia, and delivered to the purchasers in Montgomery county by said driver, who collected the money therefor, was properly convicted and sentenced for selling liquors without license in Montgomery county. It was said in the opinion of the court: "This was clearly a sale and delivery in Montgomery county. The license held by Mr. Otto authorized him to sell in Philadelphia. He had a right to sell to any person in this commonwealth, provided the sale was made at his place of business: Com. v. Fleming, 130 Pa. 138. But he had no right to peddle his beer through other counties not covered by his license, and make sales there." We accordingly held that, as his employer was not protected by a license, the defendant was not protected.

In the case in hand, the defendant was not peddling his beer through Montgomery county. The driver of his wagon did not solicit...