Commonwealth v. Peters , 1896 Pa. Super. LEXIS 1 ( 1896 )

Opinion by

Wickham, J.,

(after finding the facts, as set out in the statement of facts) :

Manifestly, the only sales visible in the transaction herein detailed were those made by the druggist to the appellant, who bought for himself and his two friends. The obtaining the liquor was in pursuance of a joint understanding and made the appellant no more liable as a vendor than if he had been sent for and secured a luncheon or a basket of fruit for the use of the three. In a nut shell, the case is this: Three men, desiring to have and use a certain article in common, contribute in the proportion of twenty-five one hundredths, thirty-five one hundredths and forty one hundredths to its price. One of the three, to effectuate the common purpose, acting for himself and the others and at their request, makes the purchase, pays the price and brings the article to a place appointed. The three, thereupon recognizing each other’s rights in the thing purchased, jointly use it as their own. How can any one of the three be deemed the vendor of the others, or either of them ?

Upon the uncontroverted facts, the appellant was entitled to an acquittal. The refusal to affirm his point and the direction to the jury to find for the commonwealth therefore constitute error. The affirmance of the point would have resulted in an acquittal, and the point may therefore be considered as equivalent to a request to instruct the jury to find for the defendant, while not such in form. So regarding it, and knowing that the commonwealth’s entire case is before us, we reverse without a venire facias de novo. ' A new trial could not result in conviction, and would subject the appellant and the public to needless expense.

The judgment of the court below is reversed, and the appellant discharged from his recognizance.