Rauch v. Commonwealth

Chief Justice Agnew delivered the opinion of the court, October 12th 1875. These three cases will be considered together. The plaintiffs in error rest their case on the right of Frederick W. Rauch to sell beer as a licensed brewer, under the Act of 7th of March 1866, Pamph. L. 332. This defence is common to two of the indictments, and is set out in special pleas. But his right to a brewer’s license was not derived from the Act of 1866. The proviso in the first section of the act only saved the right from the prohibition of the act, and thus enabled him to resort to former laws to obtain the license. Hence, the true question is whether the right to a brewer’s license, under former laws, was repealed by the Local Option Act of 1872, and its supplement of 1873, Pamph. L. 1872, p. 49; Pamph. L. 1873, p. 39. This has been settled by the decision of this court in the case of the Commonwealth v. Muller, (opinion by Justice Mercur, Legal Intel., March 6th 1874, p. 78.) By the express terms of the third section of the Act of 27th of March 1872, and the seventh section of the Act of 6th of March 1873, licenses for the sale of malt as well as of other intoxicating liquors were forbidden in every county in which the law went into operation. Nor is the right to the license saved by the proviso, that the act should not be construed to repeal or affect any special law prohibiting the sale of intoxicating liquors or forbidding the granting of licenses. The saving is of special prohibitory laws, but Rauch claims his license as not prohibited at all. His claim rests not on the Act of 1866, but on the former laws providing for licenses to brewers. These former laws are repealed by the Local Option Law wherever it operates. It is contended, however, that the Act of 1872 not being pleaded or replied the court ought not to have noticed it. But the court having noticed it, the real question is whether it committed error in so doing ? The court having acted under the law, clearly it acted according to law, and it cannot be error when a court acts according to law. But I have no doubt the court was right in taking notice of it. The Act of 1872 is-a general law, applicable to the whole state ;■ the election under it is to be governed by the general election laws ; the result is to be duly certified and returned to the clerk of the Court of Quarter Sessions; the certificate must — 494 — be laid before tbe judges of the Court of Quarter Sessions at the first meeting of the court after the election, and filed of record, and the judges are then to be governed by the result of the vote upon the question of granting licenses, and must, therefore, take judicial cognisance of the right to have a license. Thus, by the very terms of the law, the court is bound to know judicially whether the treasurer could grant a valid brewers’ license after the result of the vote had been judicially ascertained. Besides, on general principles, a court will take judicial notice of many things which are public in their effects or relations, as seen in Mr. Greenleaf’s Treatise on Evidence, § 4, vol. 1. “ In fine (says he), courts will take notice of whatever ought to be generally known within the limits of their jurisdiction.” § 6, chap. 2. The next question is applicable to two of the indictments only, viz., Nos. 26 and 81, January 1874. These indictments set forth no former conviction for selling liquors contrary to law, yet the court, upon its own knowledge of its records, sentenced the defendants to imprisonment in the county jail as upon a conviction of a second offence. This raises a serious question, whether a defendant can be made to suffer the greater punishment due to a second offence, without a trial, or being called on to answer for a second offence ? That in-cases of felony he cannot is proved by the case of Smith v. Commonwealth, 16 S. & R. 69. There the sentence for a punishment due to a second offence was reversed, on the ground that the fact of judgment for the former offence did not appear in the indictment. It was held that this must be part of the record. But it is contended that this rule does not apply to misdemeanors. It is hard to discover any solid ground of distinction. The right of trial by jury is not confined to felonies, and the fact of identity of person is the same in either case. Clearly, a recently commissioned judge could not tell whether the John Smith or John Jones, before him now, is the same John who was convicted under his predecessor several years ago. So, if the fact of a former conviction does not appear in the record, a court of error would have no means of determining whether the defendant was rightly sentenced as for a second offence, except by sending for the record of the former case and taking proof of the identity of the person defendant. As a general principle the punishment inflicted upon a citizen for any offence should appear by the record to be the lawful consequence of his conviction of that offence. Now, imprisonment in jail is not a lawful consequence of a mere conviction for an unlawful sale of liquors. It is the lawful consequence of a second sale only after a former conviction. On every principle of personal security and the due administration of justice, the fact which gives rightfulness to the greater punishment should appear in the record. — 495 — To leave to a judge to determine it outside of the record is to subject the defendant to an unconstitutional mode of trial. The right to a trial of a material fact, to constitute his offence, by his peers, is one of the fundamental rights of the citizen, excepted out of the power of the legislature to impair or destroy. The opposite argument is that the setting forth of the former conviction would prejudice the defendant in his trial. But clearly the substantive offence, which draws to itself the greater punishment, is the unlawful sale after a former conviction. This,' therefore, is the very offence he is called upon to defend against. He cannot complain if, after suffering a former conviction and sentence, he commits a second offence of the same kind. Besides, if he desires no trial upon the question of a former conviction, a court will take care of his interests, and see that he is not unduly prejudiced. The court below therefore erred in passing sentence of imprisonment as for a second offence. And now, October 12th 1875, the sentence of the Court of Quarter Sessions of Blair county, upon the indictment numbered 25 of January Sessions 1874,is affirmed, and the record ordered to be remitted for execution, in due course of law. The sentences in Nos. 26 and 81, of January Sessions 1874, of the said Court of Quarter Sessions are reversed, and in each case the record is ordered to-be remitted to the same court, with direction to pass sentence upon the defendants in each case, as for the offence set forth in each indict- • ment respectively, and thereupon to proceed according to law.