Commonwealth v. Brem

Opinion by Rice, P. J., As the evidence has neither been printed nor brought up with the record, we have no means of determining whether the instruction complained of in the single assignment of error was erroneous or was justified by the facts of the particular case, except by a reference to other portions of the charge. If the testimony was correctly recited in the charge the learned judge was clearly right in instructing the jury that if they believed it they ought to return a verdict of guilty. An unlicensed sale of 109 liquor under the guise of club distribution is clearly unlawful, and the law will look through all disguises, and so pronounce it: Klein v. Livingston Club, 177 Pa. 224; Commonwealth v. Tierney, 148 Pa. 552 Commonwealth v. Smith, 2 Pa. Superior Ct. 474. In the last cited case the defendant furnished ample testimony to warrant a jury in finding that the association of which he was steward was a bona fide organization with a selected membership made up of respectable persons, really owning its property in common and formed and carried on for purposes to which the furnishing of liquor to its membersy without profit, was merely incidental. We held that this evidence was sufficient to carry the ease to the jury to find whether the transaction was a furnishing of liquors by a bona fide club to its own members without profit, each paying for the share of the common stock furnished to him, as claimed by the defendant, or was a mere scheme to evade the license laws as claimed by the commonwealth. But in this case, judging from the facts recited in the charge, the testimony, including that of the defendant himself, left no room for doubt that the business carried on by him was the unlawful sale of liquors without license and on Sunday, with scarcely an attempt to disguise it. The law would be feeble indeed if it could not look through so thin a disguise and pronounce the real character of the transaction. As well as we can determine without having the evidence before us the case is ruled by Commonwealth v. Tierney, and not by Commonwealth v. Smith. The judgment is affirmed, and it is now ordered that the defendant George Brem, be remanded to the custody of the keeper of the workhouse of Allegheny county, there to be confined according to law and the sentence of the court below for the residue of the term to which he was sentenced and which had not expired on the 20th day of March, A. D. 1897, when bail for appeal was perfected, and that the record be remitted to the court below to the end that the sentence and this order be carried into effect.