Altenburg v. Commonwealth

Opinion, Mr. Justice Williams : The defendant below was not the keeper of a. hotel or restaurant, bnt a farmer. He was indicted and put on trial for furnisMng spirituous, vinous, malt, or brewed liquors to persons visibly affected by intoxicating drink. The indictment was [611] drawn under the act of 1887 known as the high license law, which makes it a misdemeanor to furnish liquors by gift, sale, or otherwise, to persons visibly affected. It is true that the general provisions of the act of 1887 relate to and are designed to regulate the sale of liquors by the various classes of venders known to the law. They are not directed against the use of such liquors by the individual citizen, and they do not interfere with his right to supply his table with them, or furnish them to his family, or his guests. But when he goes beyond this limit, he goes beyond the protection to which a citizen as such is entitled, and his acts become a subject of police interest and control. The 17th section of the act of 1887, provides that it shall not be lawful “ for any person, with or without license, to furnish by sale, gift, or otherwise, to any person any spirituous, vinous, malt, or brewed liquors,” on any election day, on Sunday, nor at any time to any minor, person of known intemperate habits, or person visibly affected by intoxicating drink. This provision is not confined to dealers but is directed against “any person.” The thing forbidden is not the sale, but the furnishing of liquors to one visibly affected. Whether the furnishing be by “ gift, sale or otherwise ” is of no consequence, so far as the misdemeanor is concerned. The licensed dealer may sell to all persons except those who belong to the excepted classes. A man without a license may give liquors in like manner, but to the excepted classes no man may lawfully sell or give. The defendant was charged with having furnished liquors to persons who were at the time visibly affected by intoxicating drink, in other words, visibly intoxicated, and to whom therefore it was unlawful either to sell or give, or in any manner to furnish such liquors. The commonwealth offered evidence for the purpose of showing that the defendant had furnished liquors to persons visibly affected on various days in 1887 and 1888, and among these were several Sundays in 1888. The defendant’s counsel objected to the evidence relating to the Sundays in 1888, alleging as a reason for such objection that the defendant had been indicted, tried, and acquitted upon the general charge of furnishing liquors on Sunday during that year. He alleged that the evidence had been actually made use of on the former trial, and necessarily passed upon [612] by tbe jury; and that a verdict acquitting him of the charge of furnishing to any person on these Sundays covered the charge upon which he was now being tried, as to the same Sundays. Without insisting on the objection, and making the necessary proof to the court, the defendant filed, by leave of the court, an informal plea of former acquittal, and went to the jury on the issue so raised. But the offences charged in the two indictments were different. He had beén tried and acquitted upon an indictment charging him with furnishing liquors On Sunday. He was now on trial for furnishing to persons visibly affected. Upon the plea of former acquittal the jury found for the commonwealth and we do not see how they could have done otherwise. The trial then proceeded on the plea of not guilty, and there was evidence enough, independently of that which related to the Sundays of 1888, to justify the jury in finding a verdict of guilty. But the evidence relating to those Sundays was before the jury, and it is impossible for us now to tell whether their verdict rests upon the proof that was properly before them, or on that which had been passed upon on the former trial. The defendant’s counsel offered the record of the indictment and acquittal which they gave in evidence on the plea of former acquittal, as a defence under the plea of not guilty, as to the days covered by it, but it was excluded by the court. They then asked the court to instruct the jury that in determining the guilt or innocence of the defendant they must not consider the evidence made use of or that might properly have been made use of on the trial of the former indictment. This the court declined. The result was that the defendant failed to secure in any manner the benefit of his former trial and acquittal, and may, for anything that it is possible for us to gather from this record, have been convicted for furnishing liquors to a person visibly affected on a Sunday in 1888, notwithstanding his acquittal at the previous term of furnishing to any person on those days. This is due largely to the manner in which the question was raised by the plea of former acquittal. It is probable that the better way would have been to stand on his objection to the evidence, and make his showing to the court, or if the question was to be raised by plea, it should have been by pleading spe [613] cially, in addition to the general issue, the former indictment, trial, and acquittal, as a defence to so much of the present indictment as covered the days included in the former. If the fact so pleaded were found to be as alleged, then the defendant was entitled to the benefit of it. The gist of the offence charged in the first indictment was the furnishing of liquors on a prohibited day; that in the second was the furnishing to members of a prohibited class. The first verdict determined that he furnished liquors to no one on the Sundays of 1888. This included the prohibited classes as well as others, and he ought not now to be called upon to defend himself again from the charge of furnishing on those days. Notwithstanding the manner in which the defendant raised the question by his plea of former acquittal, we think the court should have taken care that the defendant was not convicted improperly. The jury should have been distinctly advised that the evidence of sales submitted to them on the plea of former acquittal, should not be considered by them on the general question of the guilt or innocence of the defendant; and, as the fact of the former acquittal wa.s brought to the attention of the court, although not perhaps in the most regular manner, the jury should have been told that the defendant ought not to be convicted upon proof of acts done on the several Sundays which were covered by the first indictment. Tt is suggested by counsel for the plaintiff in error, that there is an important constitutional question involved in this case, and they say in reference to it, “We claim the act of May 13, 1887, does not authorize the conviction of a farmer or private citizen for giving cider or beer to his hired help or neighbors, in a social way, while calling at his house, and if the law does go that far it is unconstitutional.” It is a sufficient reply to this suggestion that the question is not raised in this case. We incline to the opinion, as we have already said, that a citizen may use on his own table or in his own house just such beverages as he pleases. That is a matter of private habit or of domestic usage, with which the act of 1887 does not intermeddle. It is only when the conduct of the individual is such that the public morals or the public peace are affected by it, that it becomes a matter of public concern and is subject to the examination and control of the criminal courts. Now, the proper [614] observance of the Sabbath, in the judgment of the law-making powers in all Christian governments, has an effect upon public morals. The wheels of commerce stop on that day in obedience to the law, and the traffic in intoxicating drinks is suspended. If a licensed dealer cannot be allowed to furnish persons with such drinks on Sunday, surely an unlicensed citizen can give no reason why he should be allowed to do so. So, the furnishing of drink to one already visibty intoxicated is a matter of public concern. The law does not restrain a man’s private indulgence in drink. It does take notice of public drunkenness. If one has already passed the line of sober self-control, all men licensed or unlicensed must take notice of it and regulate their conduct accordingly. They must not furnish, by sale, gift or otherwise, the further supply of drink that may turn the excited man into an unreasoning brute. Such restrictive provisions, like the laws regulating the sale of poisons and of fire arms, are properly within the range of a wise exercise of the police power and ought to be faithfully enforced. The act of 1887 is not directed against the making or use of cider by the farmer. He may both make and use it as he will. He can have it on his table or in his field. That is his personal privilege. But when he allows men to assemble in his barn or about his premises who are visibly intoxicated, and he sells or gives to them intoxicating liquors while in that condition, his conduct affects not himself or his family merely, but his neighbors and the public, and becomes a subject of investigation and punishment under the provisions of the act of 1887. Judgment reversed, and venire de novo awarded.