Commonwealth v. Zelt , 138 Pa. 615 ( 1891 )

OPINION,

Mr. Chief Justice Paxson :

Tlie defendants were jointly indicted in the court below for selling liquor without a license. Upon this indictment they were both convicted. A second indictment was found against them, charging them with selling liquor to persons of known intemperate habits. Upon this charge, the jury convicted Zelt, and acquitted the defendant Porter. A special allocatur for an appeal having been allowed by our Brother Clark during vacation, the cases were heard at the last term in the Western District. Both cases were argued together, and were contained in one paper-book, and will be disposed of in one opinion. In the paper-book, reference is made to three cases, and the term and number are given of three ; but I find only two. This is mentioned to avoid misapprehension. The cases now disposed of are Nos. 24 and 25 of August Sessions, 1890, of the court below.

At the trial, in the sessions, it was claimed, and there was some evidence to prove, that the defendant Porter was acting as agent for Thomas Mears’ Sons, wholesale liquor dealers of Steubenville, Ohio ; that he sold no liquors, except such as were furnished by that firm and shipped to defendant Porter at Washington, Pa., and it is claimed they were sold only in the original package. Beer was shipped in kegs, and beer and whiskey were shipped in bottles packed in barrels. The defendant Zelt alleged that he was hired by Porter as a clerk or salesman, at a fixed salary. The proof showed sales of liquor by the keg, the quart, and the pint. With this brief statement of facts we turn to the assignments of error.

The first alleges that the court erred in refusing to charge as follows:

“ 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 known intemperate habits, their verdict should be not guilty.”

The jury have found that Chivers was a person of known intemperate hahits, and their finding is fully justified by the evidence. Was if necessary that a knowledge of such habits must be brought home to the defendants before they could be convicted ? In Carlson’s License, 127 Pa. 381, we were considering the case of selling liquor to minors, and it was said, in the opinion of the court: “ The offence of which the plaintiffs in error were guilty was that of selling liquors to minors, and the only excuse offered was that they did not know the persons to whom they were sold were minors. This ignorance is not a sufficient excuse or justification under the act of assembly. If such a defence 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, 130 Pa. 32, and in Commonwealth v. Holstine, 132 Pa. 357, 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 liquor to persons of known intemperate habits comes within the same rule as selling to minors, i. e., the intent is not material. The words in the statute, “persons of known intemperate habits,” are descriptive of a class to whom the dealer sells at his peril. It was urged, however, that such a rule would work injustice; that in many instances a man’s intemperate habits are known to but few persons, perhaps only to members of his own family, or a night watchman who may have witnessed his convivial wanderings toward his home. The answer to this is, that a man who conceals his habits does not come within the class. It is only where his intemperance has become so conspicuous as to form a habit, and that habit is known, not merely to his family or to a night watchman, but to his friends and neighbors and the community in which he lives, that, the law forbids and punishes the sale of liquor to him. Every man has a reputation for sobriety, or for intemperance, in the community in which he resides, just as every man has a reputation for integrity, or for truth, and such reputation is generally known. None know better than saloon-keepers themselves the habits and reputation of their neighbors, as to drinking, and when a man is known as an “intemperate man” in his neighborhood, not known to every one, but known generally to be such, the person who sells him liquor must take notice of that fact at his peril. Any other construction of the act would destroy it for all practical purposes; it might as well be repealed.

The second assignment alleges the court erred in refusing the following point, viz.:

“ The state of Pennsylvania has no power to pass a law making a sale of liquors to a person of known intemperate habits a criminal offence, when such liquor is shipped into this state in original packages, under the provisions of the constitution and laws of the United States with reference to commerce between the states, until such liquor, so brought in, in such original packages, has become, by breaking bulk or sale, a part of the common property of the state. And any such law, now on our statute books, has no application to this case.”

This point is based upon the ease of Leisy v. Hardin, 135 U. S. 100, recently decided by the Supreme Court of the United States. It is proper to say that no such question can arise hereafter, as the act of Congress passed last summer, commonly called the Wilson bill, has very properly left the control of the sale of liquor within the states to the laws of the respective states; in other words, it has subjected it to the police power of the states. As this case arose prior to the passage of the Wilson bill, it must be ruled under the authority of Leisy v. Hardin. The fact that the question cannot arise hereafter is a sufficient reason for not elaborating the point now. It is sufficient to refer to it briefly.

It must be considered, under the authority referred to, that the state cannot, by a general law, prohibit the importation from another state of an article of commerce, and its sale in the original package. This is the general rule; but it by no means follows that a state cannot in any manner, or for any purpose, regulate the sale of such packages. It may do so in some instances, and for particular purposes. Thus, the law of Pennsylvania prohibits and makes it a criminal offence to sell liquor to minors, to persons of known intemperate habits, and to sell it on Sunday. There is no interference here with the general power to import and sell liquor; it merely prohibits the sale to two classes of persons. I presume no one would assert that the prohibition of the sale of liquor on the Sabbath is a violation of inter-state commerce law; and, to hold that under it liquor may be sold to children and persons of known intemperate habits, is a proposition so shocking to the common sense and common judgment of mankind that I feel sure no court will ever so decide, much less that august" tribunal, the Supreme Court of the United States. While this' case doés not involve sales to minors, the principle involved is precisely the same, and, as that question comes up in other cases, wé prefer to dispose of the whole question in one opinion. In the one case, minors, the sale is to persons who are not sui juris'; in the other, persons of known intemperate habits, they are practically not sui juris, for the reason that indulgence in the use of liquor has so far destroyed their will power as to make them unable to resist temptation. In both instances, they are the wards of the law, and under its protection. The prohibition of sales to these classes only incidentally comes in conflict with the freedom of inter-state commerce. As I understand the opinion of Chief Justice Fuller in Leisy v. Hardin, it expressly excepts from the operation of that decision laws for the protection of the health and safety of the community, and it would be belittling that court, an d its opinion, to hold that it was intended to permit the sale of whiskey to children and drunkards. Indeed, the statement of facts in that case negatives the violation of any such state law as this, where it is said “that none of such sales, or offers to sell, were made to minors, or persons in the habit of becoming intoxicated.”

It is to be observed that no question was raised as to sales to persons, other than Chivers, being in original packages. Whether a box or a barrel of beer or whiskey in pint bottles can be separated and sold in single bottles as original packages, will be formally decided when the question squarely arises. The jury evidently regarded it as a trick, and an evasion of our statute.

We find no error in the action of the court below in sentencing the defendants to imprisonment in the Allegheny county workhouse. See third assignment. It appears to have the sanction of an act of assembly.

The fourth assignment is not sustained. The fact that defendant Porter was the agent of an importer was a matter of defence, and the burden was upon him to establish it by competent-evidence, to such an extent as to throw a reasonable doubt .upon the commonwealth’s case. This is substantially what the court below said to the jury.

In the fifth and last assignment, the defendant Zelt complains tbat he was not sentenced under that provision of the Brooks law which provides a different punishment for violators of the license law, by those persons having a license, from those who sell without license. Zelt claimed to have a brewer’s license. It does not appear in the paper-book, and all we know is his statement that he had such license. But he also states that he did not sell any beer of his own make; he was only the salesman for Porter, and the liquor which he sold was all sold for his employer; in other words, he was not acting under a license, but was selling for Porter, and was only protected where he would have been. We think the case comes within the ruling in Commonwealth v. Holstine, supra.

Judgment affirmed in each case; and it is ordered that the defendants surrender themselves forthwith to the custody of the high sheriff of Washington county, for confinement according to the sentence of the court below.