Commonwealth v. Johnston

• Decision Date: 16 July 1896
• Docket Number: 87-1896
• Citation: 2 Pa.Super. 317
• Parties: Commonwealth v. S. A. Johnston, Appellant
• Court: Pennsylvania Superior Court

2 Pa.Super. 317

Commonwealth v. S. A. Johnston, Appellant

No. 87-1896

Superior Court of Pennsylvania

July 16, 1896

Argued May 13, 1896 [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER]

Appeal by defendant, from judgment of Q. S. Butler Co., Dec. Sess., 1895, No. 28, convicting defendant for selling liquor without a license.

Defendant was indicted for selling liquor without a license. On the trial Charles Mitchell, among other things, testified:

Q. It was the same prescription, was it?

Objected to.

By the Court: State how many prescriptions you had?

By Counsel: It is proposed to prove by the witness that he repeatedly got a prescription filled and used it until it was worn out.

Defendant objects to the question, which is, whether or not he got liquor from the defendant more than once on the same prescription. Our objection to the question is that the question itself assumes and confirms the existence of such a prescription as is required by law and such an one as is designated in the act of assembly under which the defendant is now being tried; that although the sale of liquor more than once on the same prescription is an offense under this act, it is an independent, distinct offense from the crime for which the defendant is under trial, and is not embraced in the bill of indictment; that the offer would not tend to prove the issue on trial, but would only present to the jury the existence of facts which would constitute another crime, and if received and defendant convicted of the offense now charged, this conviction and sentence would not prevent the commonwealth from preparing an indictment against the defendant at a subsequent court for selling more than once on the same prescription, which is made a distinct offense.

By the Court: The act of 1887 providing a punishment for selling without license excepts, of course, a man who has a license, and the sixteenth section goes further and excepts druggists and apothecaries, who shall not be required to obtain license under the provisions of this act, but shall not sell intoxicating liquors except upon the written prescription of a regularly registered physician, and any one violating shall be guilty of a misdemeanor, and on conviction shall be subject to the same penalties, etc. We think that this would not be a distinct offense. It is an offense against the fifteenth section; if anything it is a defense to that, if he furnished a prescription, but that prescription is only a defense to one sale, and when his sales go beyond that they were without a defense and without a license; we will receive the testimony and give you an exception.

Q. How often did you get liquor on the same prescription at that store?

A. I don't know how often I got it; pretty often; I couldn't say how often.

Defendant made the following offer:

Mr. Bowser: Defendant proposes to prove by the witness on the stand, who is the owner and proprietor of the drug store, and the defendant, that at the time he took charge of this store he placed a registered pharmacist as manager therein, who had his assistant, to run the store; he instructed them particularly in regard to the manner in which he desired them to run his business, and especially so in regard to the sale of intoxicating liquors or spiritus frumenti; that he instructed this registered manager and his assistant not to sell any intoxicating liquors to any one except upon a prescription of a regularly registered physician, and for medicinal purposes, and not to sell to any one except on such prescription; and further that they should not sell more than once on any one prescription; and further that if any sales of liquors of any kind were made in contravention of these orders and instructions, they were made in his absence, against his authority and without his knowledge.

Mr. Forquer: Commonwealth objects to this for the reason that it is immaterial in the trial of this case; that the witness on the stand, the defendant, is admitted to be the owner and controller of this drug store, into which has already gone, within four or six months, some twelve barrels of whisky and sold out. The business for which he hired these people is the sale of drugs, and principally liquor; that was in the line of the business, and therefore he is responsible both civilly and criminally for their acts in the line of the business carved out by them.

Mr. Bowser: Further, to be followed by proof of other witnesses.

By the Court: The defendant here is indicted for violating the fifteenth section of the act of May 13, 1887, entitled, " An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors or any admixtures thereof." The section reads as follows: " Any person who shall hereafter be convicted of selling or offering for sale any vinous, spirituous, malt or brewed liquors, or any admixtures thereof, without a license," etc. As a general principle the proprietor or master is not liable for the criminal acts of his servant or agent unless he is careless in selecting the agent or has been a particeps criminis in the matter, but in this case the defendant is indicted under a particular statute and one in which we think the question of will or intent is not material, especially where the acts done were done by his authorized clerks or agents or servants, in the line of the duty for which they were employed. The Supreme Court of our state has held in several cases that the question of intent is not a material one under this act, and in the case of Carlson's and Tuttle's Licenses, 127 Pa. 331, it was held that where a hotel man sold intoxicating liquors to a minor he is liable criminally, although he had no knowledge as to the age of the minor and although he appeared to be a man of twenty-three or four years old. The same principle was indorsed in the case of Commonwealth v. Sellers, 130 Pa. 32, and in the case of Commonwealth v. Holstine, 132 Pa. 357, and Judge Paxson, in deciding the case of Commonwealth v. Zelt, reported in 27 W. N.C. 133, says: " The jury have found that Chivers was a person of known intemperate habits, and their finding is fully justified by the evidence. Was it necessary that a knowledge of such habits must be brought home to the defendants before they could be convicted? In re Carlson's License, 127 Pa. 331, we were considering the case of selling to minors, and it was said in the opinion of the court: " The offense of which the plaintiffs in error were guilty, was that of selling liquor to minors, and the only excuse offered was that they did not know the persons to whom they sold were minors. This ignorance is not a sufficient excuse or justification under the act of assembly. If such a defense could be successfully interposed in such cases, there would be few convictions, and the law would be nullified for all practical purposes." In Commonwealth v. Sellers and Commonwealth v. Holstine, it was held that to sustain a conviction for unlawfully selling intoxicating liquors under the act of 1887, it is not necessary for the commonwealth to prove a criminal intent. If the sale be contrary to law, the intent is immaterial. We are of opinion that selling liquors to persons of known intemperate habits comes within the same rule as selling to minors; that is, the intent is not material. The words in the statute, " persons of known intemperate habits," are descriptive, etc. As a principle of law I can see no difference between the principle announced in this case and in the one before the court. Here the defendant is charged with selling or offering for sale and with furnishing to men of intemperate habits. The sales were made by an agent, and therefore the act of the agent is the act of the principal in all cases unless where the question of intent becomes material to establish the willful action of the defendant. Under the act of 1887, the law under which we are now acting, I am of opinion and so rule that the question of intent here on the part of the defendant is immaterial to establish a crime as charged, and refuse the evidence and exception noted on part of the defendant; the offer is overruled and exception sealed.

The court below, Greer, P. J., charged the jury as follows:

You have been sworn to try an issue between the commonwealth and S. A. Johnston, the defendant at the bar, on the charge of selling liquors without license in this county. The grand jury at this term of our court returned a true bill against the defendant, in which there were two counts; one for selling liquor without license, and the other for selling liquor to men of intemperate habits. The second count, the one charging the defendant with selling liquor to men of intemperate habits, will not be before you; the commonwealth has seen fit to enter a nolle prosequi, so that the only question to be determined by you is the one of the guilt or innocence on part of the defendant as to selling liquor without license.

We have in our state what is known as the Brooks law, the act of assembly, approved by the governor of this state on the 13th of May, 1887; the act which regulates the sales of liquor and licensing of hotels and taverns, etc. It is called the Brooks law, because it was introduced in the legislature by a member of the house from Philadelphia, by a man by the name of Brooks, and it is the law which now regulates the sale and traffic of liquor and provides for the punishment of any violation of it.

This bill of indictment charges that Dr. S. A. Johnston unlawfully did sell and offer for sale spirituous, vinous, malt and brewed liquors and admixtures thereof...