Commonwealth v. Hurley
| Decision Date | 18 August 1924 |
| Docket Number | 125 |
| Parties | Commonwealth v. Hurley |
| Court | Pennsylvania Commonwealth Court |
Thomas L. Anderson , Assistant District Attorney for Commonwealth.
A Kirk Wrenshall , for defendant.
Before Brownson, P. J., and Cummins, J.
Certiorari from judgment of justice of the peace.
Defendant was arrested on the charge of violating the Sunday Law of April 22, 1794, 3 Sm. Laws, 177, it being alleged that he did, on the Lord's Day, commonly called Sunday, to wit, on Feb. 17, 1924, unlawfully and wilfully sell tobies. The transcript shows that defendant entered a plea of not guilty, and that, after testimony was taken, the defendant was adjudged guilty, that he " was fined $ 4 and costs, which he paid under protest." The case is now before the court on certiorari and exceptions, after procurement of a special allocatur.
The fifth exception is fundamental, it being contended that the sale of tobies on Sunday by the keeper of a boarding-house or inn to his sojourners does not constitute a violation of the act. Our authorities are to the effect, however, that the sale of cigars or tobacco cannot be justified as a work of necessity (Com. v. Hoover, 29 Pa. C. C. Reps. 413, 25 Pa.Super. 133; Seaman v. Com., 11 W. N. C. 14, 29 Pitts. L. J. 95; Baker v. Com., 5 Pa. C. C. Reps. 10; Com. v. Moses, 15 Pa. C. C. Reps. 224; Duncan v. Com., 2 Pears. 213), and certainly such sales could not be held to come within the proviso to the effect that nothing therein contained should " be construed to prohibit the dressing of victuals in . . . lodging-houses, inns and other houses of entertainment for the use of sojourners, travelers or strangers. . . ." We hold, therefore, that such a sale constitutes a violation of the act, and that defendant's fifth exception cannot, therefore, be sustained.
The first and second exceptions are, in the opinion of the court, without merit. Counsel for the defence has offered no authorities which would sustain the contention therein advanced, and we know of none.
The taking of a forfeit or cash bail, complained of in the third exception, was an irregularity, but this and all such other irregularities were waived by the defendant entering his general plea of not guilty: Com. v. McCabe, 22 Pa. 450; Com. ex rel. Hartman v. Blair County Jail Warden, 8 Dist. R. 159, 21 Pa. C. C. Reps. 488. And see Stoker v. Railroad Co., 254 Pa. 494, 498.
The fourth, sixth and eighth exceptions very properly, we think, complain of the insufficiency of the justice's record in failing to show the substance of the evidence on which the justice based his finding. A record which sets forth merely the fact that witnesses were sworn and heard is insufficient: Com. v. Patton, 4 Pa. C. C. Reps. 135. The substance of the evidence should at least be set out in order that the court may judge whether there was any evidence from which the justice could have made his finding: Com. v. Nesbit, 34 Pa. 398; Miller v. Com., 24 Pa. C. C. Reps. 513; Van Swartow v. Com., 24 Pa. 131; Com. v. Gipner, 118 Pa. 379; Denzin v. Com., 3 Pa. C. C. Reps. 654; Com. v. Gelbert, 170 Pa. 426; Reid v. Wood, 102 Pa. 312. This defect would ordinarily call for a reversal.
The seventh exception, which complains that the sentence imposed did not state the alternative duration of the imprisonment on failure to pay the fine imposed in the absence of furnishing sufficient distress, could not, under the authorities, be sustained: Com. v. Dukehart, 17 Pa.Super. 71; Com. v. Diffenbaugh, 26 Pa. C. C. Reps. 65; Com. v. Borden, 61 Pa. 272; Com. v. Irwin, 3 Pa. L. J. 59; Com. v. Congdon, 74 Pa.Super. 286, 289.
If the defendant had not already paid the fine and costs imposed, we would feel constrained to sustain the fourth, sixth and eighth exceptions to the justice's record. Where however, as in this case, a defendant has voluntarily paid and satisfied the fine and costs, the case is at an end before the issuance of a certiorari , and the Court of Common Pleas on certiorari is without power to then reverse the justice's judgment and order restitution: Com. v. Gipner, 118 Pa. 379, 12...
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