Commonwealth v. Krotzer

Opinion by Morrison, J., The defendant was convicted and sentenced on an indictment charging him with selling intoxicating liquors without a license. When this case was here before (Com. v. Krotzer, 51 Pa. Superior Ct. 411), we said: “The first assignment cannot be sustained because at the time the motion was made for a binding instruction in favor of the defendant, [358] the commonwealth had made a sufficient ease for the jury on the questions of the bona fides of the club organization, for which the defendant claimed to be steward, and whether or not the defendant had in fact been selling liquor or only making a lawful distribution of the same among the members of the organization as its steward or employee.” A careful examination of the present record discloses no reason for taking a different view of the case now, and, therefore, the learned trial judge did not err in holding that the case was for the jury. The first five assignments of error challenge the rulings of the trial judge in refusing to sustain challenges of certain jurors for cause. In our opinion the examination of said jurors, as shown by said assignments, furnished no ground for sustaining a challenge for cause as to any of them, and said assignments are overruled. We fail to discover reversible error in the remaining assignments. In our opinion the charge of the learned trial judge was, under the law and the evidence, fair, adequate and impartial. In this state, as a general proposition, the law forbids the sale of intoxicating liquors by any person unless he is authorized to make such sales by a license granted by a court of quarter sessions. The cases where such sales may be lawfully made without a license are exceptional, and we think the trial judge was right in instructing the jury, in substance, that when the commonwealth establishes, by testimony, that a defendant has been selling liquors, the burden is cast upon him of showing that he has a license or that he comes within the exceptional classes that may sell without a license. In the present case the defendant, aided by his able counsel, failed to satisfy the jury that he did not violate the law in furnishing intoxicating liquors to a large number of persons in the quantities and under the circumstances detailed by the testimony. We here remark that it was not only proved but it was conceded by de [359] fendant’s counsel that he had actually furnished large quantities of intoxicating liquors to a large number of persons within two years of the date of the finding of this indictment against him by the grand jury. In affirming the legality of the conviction of the present defendant we must not be understood as holding that a bona fide club cannot lawfully furnish intoxicating liquors to its members. That it may do so is shown by numerous authorities, among which are: Klein v. Livingston Club, 177 Pa. 224, and Com. v. Smith, 2 Pa. Superior Ct. 474. All that we now decide is that the defendant had a fair and legal trial, so far as we can determine from the record, and that the assignments of error do not disclose reversible error. The assignments of error are all dismissed and the judgment is affirmed, and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with that part of his sentence which had not been performed at the time this appeal was made a supersedeas.