Commonwealth v. Holstine

• Decision Date: 17 February 1890
• Docket Number: 102
• Citation: 19 A. 273,132 Pa. 357
• Parties: COMMONWEALTH v. CHARLES HOLSTINE
• Court: Pennsylvania Supreme Court

19 A. 273

132 Pa. 357

COMMONWEALTH v. CHARLES HOLSTINE

No. 102

Supreme Court of Pennsylvania

February 17, 1890

Argued February 6, 1890

APPEAL BY DEFENDANT FROM THE COURT OF QUARTER SESSIONS OF MONTGOMERY COUNTY.

No. 102 January Term 1890, Sup. Ct.; court below, No. 93 June Term 1889, Q.S.

On June 6, 1889, the grand jury returned as a true bill an indictment charging Charles Holstine with the offence of selling liquors without a license in the county of Montgomery. On October 7 1889, the defendant, being called for trial, entered a plea of non volo contendere, and the case was thereupon heard by the court, WEAND, J., upon the following agreed statement of facts:

"The defendant, as the driver and agent of George W. Otto, a regularly licensed bottler of the city of Philadelphia within two years last past received, in Montgomery county orders for lager beer and porter for his employer, from Wm. B. Carman, and subsequently filled these orders by delivering for his employer lager beer and porter from the wagon of Otto to said Wm. B. Carman, and he collected for his employer the price of the lager beer and porter when delivered in this county. No lager beer or porter was delivered in less quantities than one quart. Defendant was employed by Otto, on a weekly salary, with no commissions or profits from any larger beer or salary, with no commissions or profits from any lager beer or porter thus delivered by him for his employer. The defendant has no license whatever for the sale of intoxicating liquors, and all his acts were done in the course of his employment by George W. Otto, who has no license from the courts of Montgomery county, his only license being the bottler's license granted by the courts of Philadelphia."

The court, upon consideration of the foregoing, entered against the defendant a judgment of guilty upon his plea; exception.

Subsequently, after argument, a rule for a new trial was discharged, and the court pronounced the following sentence:

"And now, Nov. 18, 1889, the motion for a new trial having been overruled, and the prisoner called upon for sentence, and the court being of opinion that under the fifteenth section of the act of May 13, 1887, the court is bound to sentence under the first paragraph of said section, do now sentence the prisoner to pay a fine of $500 to the commonwealth, and the costs of prosecution, and that he undergo an imprisonment in the Montgomery county jail for the period of three months from this date, and that he stand committed until this sentence is complied with."

Thereupon the defendant, having obtained a special allowance thereof, together with an order of supersedeas, took this appeal, assigning for error:

1. The entry of the judgment of guilty upon the facts shown.

2. The sentence pronounced against the defendant.

The judgment is affirmed, and it is ordered that Charles Holstine, the appellant, surrender himself forthwith to the keeper of the Montgomery county prison, there to undergo the sentence imposed upon him by the court below.

Mr. Montgomery Evans (with him Mr. Louis M. Childs), for the appellant:

1. It is conceded that there was no criminal intent in this case, and the rule of law that in misdemeanors all who participate in the criminal act are principals, should not be so harshly applied as to render this driver liable to heavy fine and imprisonment for acts done by him in the course of his employment under a bottler, who, as he knew, had a license. If guilty, he is so through construction of law, a construction such as renders a good law oppressive and odious; but, if his employer's license authorized such sales and deliveries in Montgomery county, as were made in this case, he cannot be guilty; his guilt cannot be higher than his employer's. Otto's license made it lawful for him to sell his product outside of the limits of Philadelphia: Pollard's Petition, 127 Pa. 507; and the right of sale necessarily includes the right to deliver by wagon.

2. Such a construction of the law as would require deliveries outside the county to be made by railroads and express companies, at greater cost to the people, should not be engrafted on this highly penal statute, which does not so provide in express terms. When the ale and beer were set apart by the defendant's employer for the purchaser who ordered it, and were placed upon the wagon, the sale was complete, and they became the purchaser's property. For any further purpose of delivery the driver was the purchaser's agent. He was not instructed to demand payment, and whenever he carried the money to his employer he did so simply for the purchaser's convenience. The sales were complete in Philadelphia: Commonwealth v. Fleming, 130 Pa. 138. Every intendment of fact and law should be made in favor of the defendant. What was innocently done, for the convenience of the purchaser, should not be converted into a crime by a technical inference applicable to a civil contract. And even if Otto be technically guilty, it does not follow that the defendant, who might well suppose his employer had authority to make the sales in that way, is criminally liable: 1 Bennett's Lead. Crim. Cases, 157, editor's note.

3. The sentence was erroneous. At most the defendant could not be sentenced more severely than his employer would be, unless he himself had a specific intent to violate the law. The sentence was the minimum imposed by the first provision of § 15, act of May 13, 1887, P.L. 113, for sales made without license. As the defendant's employer was a licensed bottler, the sentence should have been under the next provision of that section, imposing punishment upon "any person having license" who shall violate "any of the provisions of the license laws." As the defendant was the employee of a licensed dealer, he had a license within the words and intent of the law. Was he convicted of a violation of the license laws; if not, then he committed no offence. A licensed vender who sells on Sunday, a day upon which his license does not authorize him to sell, cannot be convicted thereof under an indictment charging a sale without a license: Commonwealth v. Naylor, 34 Pa. 86. There is no reasonable distinction between a license restricted as to time, and one restricted as to place.

Mr Henry M. Brownback, District Attorney, Mr. Irving P. Wanger and Mr. J. A. Strassburger, for the appellee, were not heard. In their...