Commonwealth v. Rossi

Opinion by Rice, P. J., The substance of the testimony of Oliver Christ, a witness for the commonwealth, was that he ordered from the defendant, and at the same time paid him for the same, two kegs of beer, which it was agreed between them should be delivered to him on a certain day, at a certain place, and that the beer was delivered to him on the day named by another person named Tony Giasacobella. On cross-examination he testified that after he had paid for the beer he signed his name to a paper which the defendant presented but this paper is not set forth nor is its substance given in the printed transcript of the evidence. There is nothing in the testimony of this witness or in the corroborative testimony of Paul Shugarts to indicate that the transaction was other than a personal transaction between the witness and the defendant. The same is true of the testimony of Moxie Condross, which was to the effect that he ordered from the defendant and paid him for eight kegs of beer, and that they subsequently were hauled to his place by Giasacobella, who, he testified, was the defendant’s- driver. The defense, so far as these sales are concerned, was that the defendant was in the employ of a brewer in another county; that his authority was simply to solicit orders and make collections, not to deliver the beer; that he sent the orders with the money to his employer who, according to the testimony of another employee of the brewer, shipped the goods in this way: “These goods were shipped marked ‘G. W. Hamilton, Mount Union’ and across the face of the label was written the name of the parties whom the [586] goods were for, and in that way the driver at Mount Union knew who the goods were for, in connection with the list sent to the driver.” This witness, as well as Giasacobella, testified that the latter was employed by the brewer. In rebuttal, the witness Christ testified that his name was not on the tag on the kegs delivered to him, but only the name G. W. Hamilton. It is argued that there could be no conviction for these sales because the deliveries were not made by the defendant. The foregoing review of the evidence shows that this contention rests on the assumption that the testimony adduced by the defendant must be taken for verity. The answer is that the commonwealth’s testimony, if believed, warranted the jury in finding that the agreements for the sales were made by the defendant personally, and in inferring therefrom and the other circumstances that the person, who hauled the beer to the place and at the times agreed upon, was the defendant’s employee or agent. This would be the natural inference in the absence of evidence to the contrary. Whether it was overcome by the evidence adduced by the plaintiff was a question which depended to a large extent, upon the credibility of the witnesses and was for the jury. The learned judge submitted the question to them as follows: “Now, gentlemen of the jury, if you believe the testimony on the part of the commonwealth (defendant) that these orders were given to Lousi Rossi, and Louis Rossi was the agent for the Brewery, and that Tony was acting independently of Louis Rossi and delivered the beer independently of Louis Rossi, then we say the defendant could not be guilty from these sales. But if you believe that this order was given to Rossi and Tony was acting as his agent and the goods were shipped to Hamilton and not consigned to the witness Christ then he would be guilty on that sale. There is no evidence here to show that the beer delivered this man, Condross, was an illegal sale unless you believe that Tony was acting as the agent of Louis Rossi and delivered it to Con-dross as the agent of Rossi and not as the agent of the Brewing Company.” The defendant has no just cause to complain of these instructions or of the fairness and adequacy of the charge relative to these sales: Com. v. Pollak, 33 Pa. Superior [587] Ct. 600; Com. v. Tynnauer, 33 Pa. Superior Ct. 604; Com. v. Hecirrionic, 39 Pa. Superior Ct. 510. The first, second, third, fourth and seventh assignments are overruled. The material part of the commonwealth’s testimony relative to the alleged sale to Deeter may be stated in his language: “I went there and asked him if he had any beer; he said he had some; he set out some beer on the table; I drank two bottles and he drank two, and I asked him how much and he said “nothing” .... “I came back a few days afterwards and asked him if he had any more. He set the beer out and I drank two bottles and laid ten cents down and walked out.” Upon cross-examination he was asked whether the defendant saw him leave, to which he answered “No, sir; he walked over in the other room.” This was not tantamount to saying that the defendant left the room before the witness laid down the ten cents. We cannot say that the testimony of this witness, taken as a whole, was insufficient to warrant the court in submitting to the jury the question whether the defendant delivered beer to the witness for which he accepted pay, and instructing them that if he did, there was an unlawful sale. But we think there was error in instructing them that if “there was an arrangement made between the defendant and Deeters, that Deeters was to get this beer and pay for it, then it was a payment whether Rossi was there or was not there.” The jury might well understand from this and other instructions in the same connection, that they were at liberty to infer that the beer was delivered pursuant to a prior “arrangement.” We discover no sufficient evidence to sustain that ■finding. There is certainly no direct testimony to that 'effect and in considering whether the circumstantial evidence was sufficient it is to be borne in mind that this was the first and only transaction of the kind that was shown in the case, and that there is no evidence that it occurred in a place having indications that such business was carried on in it. If there was such an arrangement Deeters must have known it but he was not asked to testify whether there was or not. Nor can we safely conclude, that the instruction was harmless, particularly when considered in connection with this instruction near [588] the end of the charge: “But before you acquit him, gentlemen of the jury, we say to you, you must scan this evidence carefully and if there was an effort to evade the law you will find him guilty.” The learned judge was within his province when he admonished the jury that the devices to evade the liquor law are so numerous and so adroit and the consequences of its violation are so serious to the welfare and good order of the community generally, that it should be enforced rigidly. But, on the other hand, it is as essential in this class of cases as in others, that the evidence, and that alone, shall convince the jury beyond a reasonable doubt, that every element of a completed violation of the law exists in the case, before there can be a conviction. We cannot avoid the conclusion, that the ‘instructions to which we have alluded had a tendency to relax the well-settled rules which are for the protection of the accused. The fifth and sixth assignments of error are sustained. The judgment is reversed and a venire facias de novo awarded.