Commonwealth v. Pefferman

Opinion by Beavbr, J., The appellants were indicted for selling liquor without a [205] license. As matter of defense, they offered “to prove the incorporation of the East Pittsburg Turnverein of East Pitts-burg, Pa.; that defendants are all members of said corporation or association; that said association is organized in good faith with a selected membership of persons owning its property in common; that the distribution of liquors among the members of said association is not a sale of same but a distribution among its members ; that no sales were made to any one, except members of said organization, and that said association was not formed for the purpose of evading the liquor license law.” This offer was overruled and the testimony rejected, and the action of the court below in so doing is the only error assigned. We are not disposed to go one step beyond Commonwealth v. Smith, 2 Pa. Superior Ct. 474, which was based upon Klein v. Livingston Club, 177 Pa. 224. The offer is couched in the language of the former case and seems to us should have been admitted. Without the admission of the testimony offered, the act of incorporation was not properly before the court. Whether or not, after the admission of the testimony, the court could, as a matter of law, find that distribution of liquors in the manner in which they were alleged in the defendant’s offer to have been distributed in their club was inconsistent with the objects of the association as incorporated would have been a question for consideration. The testimony offered should have been received. The effect of it would have been a matter for consideration afterward. As was said by Mr. Justice Dean in Klein v. Livingston Club, supra: “ If this were an unlicensed sale under the guise of club distribution, it woul_d clearly be unlawful; the law would look through all disguises and so pronounce it.” But this could be satisfactorily done only after the testimony had been admitted. This conclusion is not to be in any way regarded as a determination of what the ruling of the court upon all the evidence should have been. Judgment reversed and a new venire awarded.