Commonwealth v. Eilenberger ( 1922 )

Opinion by

Trexler, J.,

The defendant was indicted in four counts: (1) selling liquors without a license; (2) selling intoxicating liquors; -(3) transporting intoxicating liquors; (4) having possession of intoxicating liquors.

The jury found him guilty of the “two first.” This may be a grammatical blunder, but if so not very serious because frequently made. Strictly speaking there is but one “first” count but the meaning of the language employed is evident, and the subject requires no further comment.

We are ashed to hold that the defendant cannot consistently be convicted of selling liquor without a license, and selling intoxicating liquor. If this be so, it avails the defendant nothing. The lower court in its opinion on the motion for a new trial properly found that t'he verdict of guilty on the second count was warranted by the evidence and that the first count might be ignored. An appropriate sentence on the second count was imposed. This action of the court was in accordance to the authorities. See Com. v. Holgate, 63 Pa. Superior Ct. 246-255, and cases there cited.

The defendant, it was testified, at the time he sold the liquor, wore a brown hat. The constable was allowed to testify at the trial that when he served the warrant eight days later, the defendant wore a brown hat. This statement had little value in proving identity but it was not error to admit it. Even if it were incompetent, it was not material and would not be sufficient ground for a reversal.

As to the refusal of the court to grant a new trial we need only state, that the witness to the offense gave a very clear and coherent story. The defendant tried to meet' this by proving an alibi. It was for the jury to decide which story was to be credited. That there were more witnesses on one side than the other did not control: Braunschweiger v. Waits, 179 Pa. 47-51. There was no proper reason present to move the lower court to disturb the verdict.

All of the assignments are overruled, the judgment is affirmed and the record remitted to the court below and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed, until he has complied with the sentence or any part of it which had not been performed when the appeal in this case was made a supersedeas.