Commonwealth v. Newhard

Opinion by

Willard, J.,

To sell spirituous, vinous, malt or brewed liquors to a minor is declared by statute to be a misdemeanor, and upon conviction the offender shall be fined not less than fifty nor more than five hundred dollars, and undergo imprisonment not less than twenty nor more than ninety days.

According to the testimony on the part of the commonwealth the defendant kept a licensed hotel. In a room over his bar room he also kept a bagatelle table where on this occasion at least boys were permitted to play the game of bagatelle for drinks. These boys were not strangers to the defendant and according to the testimony were well known to him and his family from an acquaintance of five or six years prior to the occasion on which they played for drinks on the defendant’s premises, and by too frequent visits to his bar room became intoxicated from excessive indulgence in drink bought and paid for at the defendant’s bar.

To protect young men and boys from the baneful effects of intoxicating liquors, it has been wisely declared by the legislature a misdemeanor on the part of any person with or without a license to sell to persons under the age of twenty-one years.

On the part of the defendant it is claimed that the penalty of the law should not be visited upon him for his offense, because at the time his wife was behind.the bar and dealt out the drinks to these boys in his absence and contrary to his orders.

If, under the circumstances of this case, he could cast the presumptive legal responsibility of the offense upon his wife, there was ample evidence on the part of the commonwealth that he was present himself a part of the time when the boys were drinking at the bar. This evidence was properly submitted to the jury, and, if believed, it was sufficient to remove the responsibility from the wife and place it where it belonged, notwithstanding the alleged orders and instructions.

It was also claimed by the defendant at the trial, and he testified, that two years before when his license was first granted he gave express commands that no sales should be made to minors, and that a printed notice to this effect was posted behind the bar.

The trial judge instructed the jury that if they believed such orders were given by the defendant in good faith for the purpose of having them obeyed, and that sales were made contrary to such orders and not in the defendant’s presence, such facts, so found, would constitute a good defense.

The question of the good faith of the orders and the fact of the defendant’s presence were fairly and properly submitted to the jury.

In Commonwealth v. Johnston, 2 Pa. Superior Ct. 317, we held that a druggist, who had in good faith given orders to his clerks not to sell in violation of the statute, could not be held criminally liable for an illegal sale by his clerks in his absence, and contrary to his express orders. We reversed the judgment in that case because the trial judge instructed the jury that the defendant was liable notwithstanding his orders whether given in good faith or not to his clerks, and notwithstanding that sales were made by them in his absence and against his express orders. We also decided in that case that the question of good faith was for the jury, and had to reverse the judgment because the trial judge expressly excluded that question front their consideration.

In the case before us the trial judge was careful to protect the defendant’s rights and carefully instructed the jury as to the effect of his alleged orders if given in good faith, leaving to them (as he ought to have done) the question of the bona fides of the orders. The sentence of the court was not only warranted by the statute under which the indictment was found, but was as lenient under the verdict as the defendant had a right to expect.

The specifications of error are all overruled, the judgment is affirmed, and it is ordered that the record be remitted, to the court below to the end that its sentence may be executed.