Commonwealth v. Smith , 1896 Pa. Super. LEXIS 74 ( 1896 )

Opinion by

Rice, P. J.,

We agree with the court below in holding that the system of checks adopted by this association did not make the transaction essentially different from what it would have been if the members had paid the janitor or steward directly for the liquor furnished, and he had turned over the money to the association. We agree also, that if the object of an association is merely to provide members with a convenient method of obtaining intoxicating drinks whenever they desire them and if the form of membership is no more than a pretense, so that any person without discrimination can procure liquor by signing his name in a book or buying a ticket or a check, thus enabling tbe seller to conduct an illegal traffic under the guise of a club distribution, the fact that the organization is a chartered institution will not protect the seller: Black on Intoxicating Liquors, par. 142. This was decided in Com. v. Tierney, 148 Pa. 552, and was substantially reaffirmed in the late case of Klein v. Livingston Club, where Justice Dean says: “ If this were an unlicensed sale, under the guise of club distribution, it would clearly be unlawful; the law would look through all disguises, and so pronounce it.” But there was evidence that this was a bona fide organization with a selected membership made up of reputable persons, really owning its property in common, and formed and carried on for purposes to which the furnishing of liquor to its members without profit was merely incidental. Of course it was for the jury to determine what the facts were; all that we are required to say, or do say, is, that there was ample evidence to warrant a jury in finding the foregoing facts. Assuming, then, that a jury might find that the transaction was a furnishing of liquors by a bona fide club to its own members without profit, each paying for the share of the common stock furnished to him, and that it was not a scheme to evade the license laws, the question arises whether it was an illegal sale. At the time the case was tried, tins was an unsettled question concerning which conflicting opinions were held. Since that time it has received thorough and deliberate consideration by the Supreme Court and has been resolved against the contention that such a transaction is an illegal sale within the meaning of the act of May 13, 1887, known as the Brooks Law: Klein v. Livingston Club, 177 Pa. 224. Says Justice Dean : “ The purpose of the whole system is to distribute the advantages, comforts and luxuries of the club among the members so that there shall not be unequal contributions to the treasury which purchases them. They are all owners of the property, when purchased in equal shares, and if a division were then made, each would be entitled to an equal share of the liquor; but one consumes his share and that of the others who do not drink liquor, and he puts back into the common treasury the value of the other’s share; therefore, although by consumption the division is not equal, yet it is made equal by the contribution to the treasury, that has neither lost nor gained, consequently the distribution is equitable. Does this constitute a sale? We think not; there is no element'of bargain, only a method of distribution of the common property.” Applying these principles to the facts which a jury might well have found from the evidence before them, the court below should have charged the jury, that, upon such a state of facts, the transaction would not be an illegal sale for which the defendant could be convicted. Separate discussion of the several assignments of error raising this question is unnecessary. So far as the rulings specified therein are in conflict with the foregoing conclusions, the assignments are sustained.

The other assignments .will be briefly considered in their order:

First assignment. This is not in accordance with rule XVII. because the answer of the witness is not given. The reasons for this rule and the importance of conforming to it are so clearly shown in Battles v. Sliney, 126 Pa. 460, that we need only refer to that case.

Second assignment. Even if the objection that the question was leading was well taken, yet as the witness did not answer, no harm was done. If it was apparent that the only purpose of the question was to ridicule or humiliate the witness, who had been called, by the counsel putting it, it should have been rejected on that ground. But of this the trial judge was better able to judge than we, and we are not clear that he erred in the exercise of his discretion in that regard.

Third assignment. As the charter had been put in evidence it was incompetent and a mere waste of time to ask the defendant what its provisions were. But as he did not answer the question the error in overruling the objection did not harm him.

Fourth assignm ent. The stenographer’s notes show that, after the evidence was closed, but whether before or after the jury were charged does not affirmatively appear, the counsel for the defendant asked “ to have the remarks of the district attorney in his argument, to which they desire exceptions, to be placed on the record.” Then follow the remarks quoted in the assignment, and then the notes show that an exception was noted and a bill sealed for the defendant. The assignment is that the court erred in permitting the counsel to make the remarks quoted. Some of the statements alleged to have been made by counsel were outside reasonable limits and we remark generally that the prosecuting attorney in a criminal case is so far counsel for the defendant that he ought not to permit himself, nor to be permitted without correction, if objection is promptly made, to assert in Iris closing argument to the jury the existence of criminating facts of which there is no evidence in the case. But we are not clear that the assignment is sustained by the- record. The record does not affirmatively show that the court “ permitted ” the counsel to make the remarks, or. that the judge’s attention was called to them at the time they were made, or at any time when he could have prevented or counteracted their harmful effect, or that he was asked to do anything concerning them. Neither of the methods recognized in Com. v. Weber, 167 Pa. 153; Holden v. Penna. R. R., 169 Pa. 1, and Com. v. Windish, 176 Pa. 167, for bringing the remarks of counsel upon the record, so that the action of the trial court with reference thereto can be reviewed by the appellate court, was adopted. We are therefore unable to sustain the assignment.

Fifth assignment. This is overruled for the reason that the record does not show that the ruling was excepted to at the time.

Seventeenth assignment. The learned judge did not charge the jury as to the contents of an anonymous letter not put in evidence. He did speak of a notice he had received in consequence of which he directed the constable to investigate the case. This explanation of how the return came to be made ought to have been unnecessary, but it was evidently called out by remarks of counsel. Its only effect was to show that the costs ought not to be put on the constable in case of acquittal. If the language of the charge had been quoted totidem verbis in the assignment as rule XVI. requires, its purpose would have been apparent, and it would also have been seen at once that it did not harm the defendant.

Judgment reversed and a venire facias de novo awarded.