Commonwealth v. Tremeloni

Opinion by

Keller, J.,

The defendant, Tremeloni, was indicted for (1) selling, (2) possessing and (3) manufacturing intoxicating liquors for beverage purposes. The court directed a verdict of not guilty, but left the question of costs to the jury which imposed them on the defendant. The court subsequently set aside so much of the verdict as imposed the costs on the defendant, on the ground that the evidence failed to show any illegal possession of iiquor by him. The Commonwealth appeals.

A review of the evidence convinces us that the court erred in directing a verdict of acquittal; that there was competent evidence from which the jury might have found the defendant guilty. Even if it should be held that section 3 of the Act of March 27, 1923, P, L, 34, permitted the defendant to possess, exclusively for use in his private dwelling, fruit juices which by process of natural fermentation had become intoxicating,— which we are not called upon to decide in this case and therefore do not pass upon — , yet such possession became unlawful as soon as any of the liquor thus made was sold, and evidence of a sale thereof warranted a conviction of unlawful manufacture, possession and sale.

However mistaken the court may have been in giving binding instructions for the defendant, the verdict of the jury ends the prosecution and bars further proceedings on the charge; but the action of the court below in setting aside the verdict imposing costs on the defendant being based on an erroneous view of the law, may be corrected as a clear abuse of discretion.

Th first assignment of error is sustained. The order is reversed and the record is remitted to the court below with directions to sentence the defendant to pay the costs in accordance with the verdict.