Commonwealth v. Meyers

Opinion by

Head, J.,

The record shows the branch of the Loyal Order of Moose in New Castle, Pennsylvania, is composed of upwards of one thousand members. It is chartered not only by the national organization, of which it is a part, but also by the Court of Common Pleas of Lawrence County. In connection with its lodge and club rooms it maintained a grill, a restaurant and a buffet, from which food, liquors, tobacco and the like were served to the members. The defendant, a steward employed to serve these articles, was indicted for selling liquor without a license and convicted. After sentence he took this appeal.

When the testimony had been all delivered, counsel for the Commonwealth presented to the learned trial judge a number of written points for charge. The second of these covers more than a half of a closely printed page of the paper book. It undertakes to recite the facts to be considered by the jury in making up their verdict. By the unqualified affirmance of that point the learned trial judge adopted, as his own, the conclusions of the prosecuting officer in respect to what should be considered by the jury. We quote from the point: — “You may take into consideration the fact that four stewards are engaged in conducting the sideboard and selling these tickets, while but two other persons are employed in looking after the wants of members in the other social features conducted by the order.” We can find no warrant in the evidence to justify the learned trial judge declaring it to be a fact that only “two other persons” completed the staff of those who conducted the affairs of the order. There was evidence from which the jury might have found such to be the fact; but there was also proof that a salaried secretary was constantly engaged in looking after the business of the organization, the conduct of its club rooms, the purchase of supplies, &c. There was testimony that indicated the house committee, of seven members, was an active body and rendered services in connection with the conduct of the affairs and business of the order. If the learned trial judge saw fit to advert to the evidence concerning these matters, he should have laid the whole of it impartially before the jury so that they might find from all of it just what were the facts. The second point referred to should have been refused and the tenth assignment of error must therefore be sustained.

In answering the Commonwealth’s third point the learned trial judge was again led into error. By affirming that point he instructed the jury that if the distribution of the common stock of liquor among the members of the order resulted in any profit or any loss, it would be unlawful and would make those concerned in such distribution guilty of an illegal sale of liquor. As we view it, this amounted to a binding direction. Under this instruction a legal distribution would be impracticable if not impossible. Very often the question whether a series of transactions has resulted in an apparent profit or loss depends entirely on the system by which the accounts are kept. In one system charges may be made against the fund to be distributed for a proportionate part of the cost of light, heat, rent for room space and other like matters. In other cases the fund would not be diminished by any such charges and might thus show at least a paper profit.

In Union League v. Ransley, 39 Pa. Superior Ct. 514, we had occasion to consider whether the extensive distribution of cigars, at the Union League of Philadelphia, amounted to a sale of such cigars within the meaning of the statutes relating to the payment of mercantile taxes. After reviewing the leading case of Klein v. Livingston Club, 177 Pa. 224, and applying its principles to the facts then before us, we reached the conclusion the Union League was not engaged in the sale of cigars and there-, fore was not a dealer within the operation of the tax statutes. A brief quotation from the opinion of the court in the case cited will throw some light on the point we are now considering: — “It is true that it appears, from the reports made to the governing body of the receipts and expenditures incident to the handling of cigars, the receipts exceeded in amount the charges specially set over against them, but it also appears that this resulted only in a paper profit rather than a real one, because under the system of bookkeeping, adopted by the club for the guidance and information of its officers, no charges were made for many important items, such as light, heat, floor space, service, etc., that would necessarily attend the business of an ordinary dealer in such articles. We are constrained to hold, therefore, under the authority of the case cited, that the appellant is not a vender of or dealer in merchandise within the meaning of the Act of 1899, and is not subject to the mercantile tax imposed on such dealers by that act.” We think therefore the standard laid down by the learned trial judge in affirming the Commonwealth’s third point was too stringent. The point should have been refused and the eleventh assignment of error is sustained. For substantially the same reasons we think the twelfth specification of error to be well taken. The fourth point of the Commonwealth, like the second and third, should have been refused.

In cases like the one before us, it has been said more than once that if, from the evidence, the jury reach the clear conclusion the real purpose of an organization is the illegal sale and distribution of intoxicating liquor, they may with propriety go behind any disguise or sham structure set up for the purpose of concealing the facts. On the other hand, it is recognized that organizations created in good faith for a lawful purpose, and honestly working out such purpose, may, if such be the pleasure of the members, provide proper accommodations to serve such members with food, tobacco, liquors and other like things. We know of no principal on which such a corporate body, in order to escape the ban of illegality, must so nicely adjust every element of the commercial side of the transaction that it can be truthfully said there was neither a dollar of profit nor a dollar of loss resulting from such distribution during a month, a year or other fixed period.

The bill was found by a legally constituted grand jury. There was no impropriety in the refusal of the court to quash it because one of the grand jurors, who was also a member of the organization served by the defendant, was asked to withdraw during the deliberations of his fellows on that bill. The first specification is overruled. It is not apparent to us that any legal right of the defendant, secured to him by the Constitution or laws of Pennsylvania, was impaired or destroyed because the learned trial judge refused to compel the private counsel aiding in the prosecution to file his warrant of attorney. The second specification is overruled and this carries the third one with it.

Passing to the seventh specification, we feel obliged to conclude that a considerable portion of the general charge therein complained of is subject to the same criticism briefly noted as to the earlier specifications and this assignment also must be sustained.

The judgment is reversed and a venire facias de novo awarded.