Commonwealth v. Sellers

• Decision Date: 28 October 1889
• Docket Number: 14
• Citation: 130 Pa. 32,18 A. 541
• Parties: COMMONWEALTH v. JAMES SELLERS
• Court: Pennsylvania Supreme Court

18 A. 541

130 Pa. 32

COMMONWEALTH v. JAMES SELLERS

No. 14

Supreme Court of Pennsylvania

October 28, 1889

Argued October 21, 1889

Appeal of Commonwealth Reported at 130 Pa. 32 at 36.

APPEALS BY DEFENDANT FROM THE COURT OF QUARTER SESSIONS OF BUTLER COUNTY.

Nos 14, 15 October Term 1889, Sup. Ct.; court below, Nos. 41, 42 September Term 1887, Q.S.

On September 7, 1887, the grand jury returned as a true bill an indictment to No. 41 of the court below charging that James Sellers on September 5, 1887, "did furnish by sale, gift or otherwise, spirituous, vinous, malt or brewed liquors to Tillie Cline and E. B. McDonald, for their use . . . ., they the said Tillie Cline and E. B. McDonald then and there being minors; contrary," etc. On the same day, an indictment to No. 42 of the court below charging that James Sellers on September 5, 1887, "did unlawfully furnish by sale, gift or otherwise, spirituous, vinous, malt or brewed liquors to John Reiger [and others named], they the said [persons named] then and there being persons of known intemperate habits contrary," etc.

These indictments were called for trial together before HAZEN P.J., on September 15, 1887, when in No. 42 the defendant's counsel filed a motion to quash the indictment for the reasons following:

1. Because it does not charge that the defendant knew that the persons therein named were persons of known intemperate habits. Guilty knowledge is the gist of the offence, and the pleader having failed to charge it, the bill of indictment is invalid.

2. Because the bill of indictment does not aver that the defendant knowingly and wilfully furnished by gift, sale or otherwise, for use as a beverage, intoxicating liquors.

By the court: The motion is refused.

The trial of the indictments proceeding, it was made to appear, inter alia, that the defendant held a license to sell liquors granted on April 4, 1887. The jury returned a verdict of guilty, on each indictment. Rules for a new trial having been discharged, on October 1, 1887, judgment was passed upon the defendant, on each indictment, when, on allowance thereof, the defendant took these appeals, specifying that the court erred:

1, 2. In not quashing the indictment because it did not aver that the defendant knowingly and wilfully furnished intoxicating liquors, by gift, sale or otherwise, for use as a beverage.

3, 4. In sustaining the conviction, and sentencing the defendant under the act of May 13, 1887, P.L. 108, and in not holding and deciding that said act was unconstitutional and void.

5. In sentencing the defendant under the provisions of the act of May 13, 1887, passed subsequent to the date of his license granted to him under prior laws. ^[*]

The judgment of the Court of Quarter Sessions is therefore affirmed, and record remitted.

Mr. M. B. McBride (with him Mr. H. H. Goucher), for the appellant.

Counsel cited, (1) upon the point that the word "wilfully" was required in indictments under prior statutes: Act of May 8, 1854, P.L. 663. (2) That the act of May 13, 1887, P.L. 108, is unconstitutional: Dorsey's App., 72 Pa. 192; Beckert v. Allegheny City, 85 Pa. 191; Phoenixville Bor. Road, 109 Pa. 44; Rogers v. M. Imp. Co., 109 Pa. 109; Hatfield v. Commonwealth, 120 Pa. 395; Morrison v. Bachert, 112 Pa. 322; Commonwealth v. Patton, 88 Pa. 258; Davis v. Clark, 106 Pa. 377; Scranton School D.'s App., 113 Pa. 176; Ayars' App., 122 Pa. 266.

Mr. R. P. Scott and Mr. C. A. McPherrin, District Attorney, were not heard for the commonwealth.

The brief filed cited: Commonwealth v. McCandless, 21 W.N. 162.

Before STERRETT, GREEN, WILLIAMS, McCOLLUM and MITCHELL, JJ.

OPINION

NO. 14.

MR JUSTICE STERRETT:

The appellant, James Sellers, was indicted, convicted, and sentenced for furnishing intoxicating liquors, on September 5, 1887, in the county of Butler, "to Tillie Cline and E. B. McDonald, for their use, . . . they, the said Tillie Cline and E. B. McDonald, being then and there minors, contrary to the act," etc.

The subject of complaint in the first and second specifications is, that the court erred in not quashing the indictment before the jury was sworn, because it does not aver that the defendant knowingly and wilfully furnished the intoxicating liquor, etc. To that it may be answered that the indictment is not under the former law, but under the seventeenth section of the act of May 13, 1887, in which the words "knowingly and wilfully" are not employed. It charges the offence substantially in the language of the act prohibiting it and prescribing the punishment, and is therefore sufficient according to the provisions of our criminal procedure act: § 11, act of March 31, 1860, P.L. 433.

The third and fourth specifications are that the court erred in sustaining the conviction, and sentencing defendant...