Commonwealth v. Zelt

• Decision Date: 05 January 1891
• Docket Number: 190,189,188
• Citation: 138 Pa. 615,21 A. 7
• Parties: COMMONWEALTH v. LOUIS ZELT ET AL
• Court: Pennsylvania Supreme Court

21 A. 7

138 Pa. 615

COMMONWEALTH v. LOUIS ZELT ET AL

Nos. 188, 189, 190

Supreme Court of Pennsylvania

January 5, 1891

Argued October 22, 1890

APPEALS BY DEFENDANTS FROM THE COURT OF QUARTER SESSIONS OF WASHINGTON COUNTY.

Nos 188, 189, 190 October Term 1890, Sup. Ct.; court below, Nos 24, 25 August Term 1890, Q.S.

On August 22, 1890, to No. 24 August Term 1890, in the court below, the grand jury returned as a true bill an indictment charging Louis Zelt and John B. Porter with selling vinous spirituous, malt and brewed liquors, and admixtures thereof, without a license; and on the same day, to No. 25 of the same term, an indictment was found charging the same defendants with having furnished liquors to Fred Chivers and others unknown, they being persons of known intemperate habits. The defendants, in each case, pleaded not guilty.

The two indictments were tried together on August 27, 1890, when the following facts were shown:

In July, 1890, the defendants were keeping a place for the sale of liquors in a building owned by the defendant Zelt, in the borough of Washington. Witnesses for the commonwealth testified that they had purchased liquors there in pint and quart bottles, in some instances from Zelt and in others from Porter. Fred Chivers testified that Zelt sold to the witness a quart bottle of lager beer. There was evidence also of the sale of beer by the defendants in kegs. Upon cross-examination of the commonwealth's witnesses, it appeared that the bottles of liquor sold by the defendants were enclosed in pasteboard boxes or paper wrappings, stamped with the name of the manufacturer. A number of witnesses, called by the commonwealth, gave testimony tending to prove that Fred Chivers was a man of intemperate habits, and known as such in the community.

The testimony of the defendants, in regard to the character of the business carried on by them, was in substance to the following effect:

Louis Zelt was the owner of a building formerly used by him as a brewery. John B. Porter, who resided at Mansfield, Allegheny county, having received from the firm of Thomas Mears' Sons, liquor dealers at Steubenville, Ohio, a written paper which was put in evidence, appointing him to act as their agent at Washington, Pa., for the sale of liquors, rented from Zelt, for use in the carrying on of the business of such agency, a part of Zelt's then unused brewery building, for the consideration of $75 per month; employed Zelt to act as a salesman at a compensation of $3 per day, and hired two teams and wagons from Zelt, for use in delivering goods to customers, at $5 per day. Porter's arrangement with Thomas Mears' Sons was, that they were to ship him whiskey from their establishment at Steubenville, Ohio, and have beer shipped to him from Wheeling, W. Va.; and, as a compensation for selling it, he was to retain 25 per cent of the receipts, the expenses of the business, including the rent and other items above mentioned, being paid out of the money of the firm. In pursuance of this arrangement, beer and whiskey were shipped from Wheeling and Steubenville, respectively. The beer came in kegs and bottles, the latter wrapped in heavy paper or pasteboard, and placed in barrels without heads, for shipment. The whiskey was put up in bottles, the corks of which were sealed with wax, stamped with the initials of the firm of Thomas Mears' Sons, the bottles being enclosed in pasteboard boxes or paper sacks, with the name of that firm printed thereon, and being packed and shipped in open boxes and barrels. The liquors, upon their receipt at Washington, were sold out by the defendants by the keg and bottle, the wrappings of the bottles being undisturbed, and no liquors were sold by them other than those so shipped by Thomas Mears' Sons.

The defendant Zelt testified that Fred Chivers was not known to him to be a man of intemperate habits, and other witnesses for the defendants testified that they did not consider Chivers a man of known intemperate habits.

At the close of the testimony, the court, McILVAINE, P.J., charged the jury in part as follows:

We instruct you that, prior to the eighth day of this month, a resident of Ohio, under the constitution of the United States, could ship into this state, in the course of his business, as an article of commerce, spirituous, vinous, malt and brewed liquors and admixtures thereof, and by himself or by his duly authorized agent, dispose of or sell them as shipped and imported in the original packages, and that the Brooks law, so far as it would, in its letter, interfere with this right is inoperative; but, the moment the liquor thus imported ceases to be an article of trade between the state of Ohio and this state, and becomes an article of trade in this state, then the selling thereof in this state, without license, becomes an offence under the Brooks law. . . .

This brings us to the questions of fact involved in this case, and they are as follows:

1. Did the defendants sell spirituous, vinous, malt or brewed liquors or admixtures thereof, without having first obtained a license so to do, as charged in the indictment?

2. If so, were the liquors sold the property of Thomas Mears' Sons, residents of Ohio; and was the defendant, John B. Porter, their bona fide agent, and did he so act when he sold the liquors; and was Louis Zelt really his clerk?

3. Were the liquors sold imported into this state from Ohio, in the due and ordinary course of trade between the state of Ohio and this state; and were they sold in the original packages of commerce as shipped, without being broken, separated, and retailed so as to suit customers who did not wish to buy the whole of the original package as shipped? . . . .

These, gentleman, are questions of fact for you, and it is for you to determine whether or not there was a bona fide agency, and whether or not this liquor which was shipped here was the liquor of Thomas Mears' Sons, and whether or not this really was their establishment, and whether or not the liquor was sold as imported goods, and whether or not this man Porter was acting solely as agent, not setting up an establishment of his own and making a pretended agency, a cover, in order to violate this law that we have upon our statute books, which prohibits the sale of liquor without first obtaining a license. . . .

In the second case, the defendants are indicted for furnishing liquor to men of known intemperate habits; and, in this indictment, the party to whom it is alleged the liquor was sold or furnished and who was a man of known intemperate habits, was Fred Chivers. . . . In making out a case of this kind it is necessary for the commonwealth to show, first, that the liquor was furnished by the defendant or defendants to the man named in the indictment. . . . The second necessary ingredient in this crime is, that the party named in this indictment, that is, Chivers, was a man of known intemperate habits; that is, was a man who used intoxicating drinks to excess, and so much so that it became a habit of his. Did he use it frequently to excess, and so that it became a habit, and was that known in the community where he lived, and where the defendants furnished the liquor, so that the defendants could be presumed to have known the habits of this man. The defendants have asked us to charge you that the commonwealth must prove that the defendants knew this. We think this is not necessary; because it would be hard to bring proof that the defendants had actual knowledge, and the most the commonwealth could be required to do is to prove that the witness was a man of known intemperate habits in the community where the defendants lived and where the sales were made, so that it could be presumed, as it would be their duty, entering into a business of that kind, that they knew his habits. . . .

In both of these cases it is the business of the commonwealth to make out its case beyond a reasonable doubt. I might say, in the charge of selling liquor without license, the burden is on the commonwealth primarily to make out its case beyond a reasonable doubt, that the defendants sold the liquor, and that they had no license. [The defendants' setting up that Porter was an agent of an importer, the burden is then on them to show that, or to show such a state of facts that it throws a doubt upon the commonwealth's case, so you could say you had a reasonable doubt as to the charge as made.] The burden of proof always rests on the commonwealth to make out a case beyond a reasonable doubt.

The following points are submitted by the defendants:

2. If the jury believe from the evidence that the defendant, John B. Porter, in the sale of the liquor charged, was acting only as agent, under proper authority, for the firm of Mears' Sons, of Steubenville, Ohio, a licensed firm, engaged in the wholesale liquor business in that city, and that said firm consigned said liquor to John B. Porter, put up in original packages, sealed and stamped by them at their place of business in Steubenville, Ohio, and that the same were sold by him as such agent in the said original packages, and in no other way, then there can be no conviction for selling without license in this case, and their verdict should be for the defendants.

Answer: Affirmed.

5. Unless the jury are satisfied, beyond a reasonable doubt, by the evidence in the case, that the defendants knew, at the time of furnishing the liquors named in the indictment to Fred Chivers, that said Fred Chivers was a person of know intemperate habits, their verdict should be not guilty.

Answer: This is refused, if the point means that the commonwealth is bound to prove directly that the defendants had knowledge of the habits of Fred Chivers.

7. The state of Pennsylvania has no...