Commonwealth v. Tierney , 148 Pa. 552 ( 1892 )

Opinion by

Mr. Chief J ctstice Paxson,

The discussion of this case, both in the paper books and at bar, has taken a much wider range than its facts justify. All that is essential to its proper decision, can be considered in connection with the second specification of error, which is as follows : “ The learned trial judge erred in charging the jury as follows: I instruct you, therefore, that if you believe the testimony which has been presented to you, it is your duty to find that the defendant is guilty of the offence with which he is charged.” The third specification presents the same question in another form.

The defendant was indicted for violating the law by selling liquor without a license. It appears from the testimony that he had at one time been selling liquor under a wholesale license at his place, at the southeast corner of Twenty-third and Kim-ball streets, in the city of Philadelphia. He failed to obtain a license of any bind for the year 1891. The reason why it was withheld does not appear. There was evidence that the place-had a very bad character. Shortly after the license was withheld, he was found selling liquor at the same place, and was indicted for the violation of the license laws. His defence was, that he was not selling on his own account, but as the steward of the Ellsworth Club, and that no sales were made to others than members of the club, unless brought there by a member. It was alleged that the club had been incorporated by the court of common pleas. Of this, however, we have no proper knowledge, as we have not been furnished with a copy of the charter and by-laws, if any there be. This is o£ very little importance. Assuming it to have been regularly chartered, the question arises upon the evidence, whether it was a bona fide club, organized for social or other proper purposes, or whether it was a mere scheme or device to evade the license laws. A careful examination of the evidence leaves us in no doubt upon this point.

We find the defendant, a very short time after his license had been refused, selling liquor in the same old barroom that he had used under his wholesale license. It was a small room, out of which everything had been removed but a few tables and a few chairs. A place of about six feet square had been partitioned off from the room from which the liquids were being dispensed. This little room was the club room, the balance of the house being occupied by the defendant and his family. He claimed to be the owner of the house, and to have rented the barroom to the club at a rent of ten dollars a month; that he was employed by the club as its steward at a salary of sixteen dollars per week; that all the liquors were purchased by and belonged to the club; and that he merely dispensed them as its agent or steward. Each member of the club appears to have been furnished with a ke}r by which to obtain admission to the club room.

One witness for the commonwealth testified: “ I pass there frequently, and, by observation, I found a vast number of men coming out of his place, drunk, on Sundays and through the week, four or five going in at a time, having keys. One day I met him and asked him to give me a key. He said: It is a club. If you become a member of the club you can come in, but if you will come in with one of the members, or one that has a key, I will give you all you want. I told him I liked a glass of beer occasionally. He said he served the club, and if I came in with them I could have beer.” A number of members of the club were called by the defendant, some of whom stated that the initiation fee was twenty-five cents, and the weekly dues ten cents. Others put it at twenty-five cents. As we were not furnished with a copy of the charter, we can only state the object of the club, as given by these witnesses. The main purpose, as we gather it from their testimony, appears to have been sociability, and, to some extent, mental improvement. Its literary department consisted of two penny newspapers, and the Police Gazette. All of the defendant’s witnesses testified that the proceedings were conducted in an orderly manner, and that beer was furnished them at five cents a glass, and whisky at ten cents.

We need not further refer to the circumstances under which this alleged club was formed. The evidence abundently shows that it was a mere sham, a device to evade the license laws. It was a club in form; in fact, it was a mere barroom, where liquor was sold without a license. There was a clumsy attempt to disguise its real character, and throw over it the protecting mantle of the law. The latter is not so feeble, however, that it cannot pierce such a thin covering as this. It follows, from what has been said, that it was not error in the court to instruct the jury that, if they believed the testimony which was pre-' sented to them, it was their duty to find the defendant guilty of the offence with which he was charged.

We decline to discuss the rulings of the court, referred to in the fourth and fifth specifications, for the reason that the rights of a bona fide club are not involved in this case, and we prefer to decide only what is legitimately and necessarily before us. We rule this case upon its own facts. Were we to countenance such a sham as this, any man who is refused a license can get a few of his customers to sign a paper, constituting themselves a club; rent them his barroom, have himself appointed a steward, and, by such clumsy device, evade the law. We cannot dignify such an association by treating it as a club.

Judgment affirmed, and the appellant is required to undergo the sentence imposed by the court below.