Commonwealth v. Berney

Opinion by Williams, J., The appellant was tried and convicted of having knowingly let or demised a certain house to one Had McKee [436] “to be by her kept, maintained and conducted as a common bawdy house and place for the practice of fornication.” The testimony of the Commonwealth was that the McKee woman had been solicited by the defendant to come to the toAvn where he lived and open a bawdy house in property belonging to his wife for whom he acted as agent; that the house was turned over to the McKee woman under an agreement of sale which provided that she should pay $200 down and $55 a month thereafter, the purchase-price being set at $5,500; that she paid the $200, got possession' of, and operated the place as a bawdy house; and that he came there about two or three times a week selling articles of wearing apparel to the inmates, knowing their business. When asked why the agreement of sale had been entered into, she answered that it was the only way she could get the house as he would not lease it for fear of getting in trouble. He also promised her protection from police interference, and tried to bribe local officers, giving one of them a téndollar bill on two occasions. On behalf of the defendant it was contended that the property had not been leased, and that the transaction was a bóna fide agreement of sale. The court, after reviewing the testimony, charged as follows: “We say to you that if after considering all the testimony, you would conclude that this contract, as offered in evidence, was entered into for the purpose of endeavoring to evade the law, that it was not the intent and purpose of the parties thereto that Cad McKee should become the purchaser, but simply for the purpose of being a lessee, and that it was with the knowledge of the defendant that Cad McKee was going to operate a house of prostitution, and that the defendant did lease to her, he would be guilty of leasing a bawdy house.” The verdict was guilty and the defendant was sentenced to pay the costs and undergo an imprisonment of forty-five days in the county jail. Prom this sentence the de [437] fendant has appealed, alleging two errors, viz: in not explaining the meaning of “beyond a reasonable doubt”; and in submitting the case to the jury. The contention that the Commonwealth had no right to question the bona tides of the agreement of sale in the absence of an allegation of fraud, accident or mistake, cannot be sustained. The Commonwealth is a stranger to the agreement, and, as such, is not bound by it in any way: Krider v. Lafferty, 1 Wharton *303, 302; Highlands v. Cumberland, etc., Co., 203 Pa. 134; Johnson v. Stewart, 243 Pa. 485, 500. Courts of justice will never permit an unlawful thing to be done indirectly, and will always look through the form and find the substance, if such substance is the subject of competent proof. The appellant further complains that the charge of the court failed to explain the meaning of the words “reasonable doubt.” The charge was as follows: “Now gentlemen, you have heard the evidence here; consider all of it and give it such weight as you think it is entitled to: If after considering all the evidence in this case, you are satisfied beyond a reasonable doubt that this defendant did lease the premises to Cad McKee for the purpose of conducting a bawdy house, and that she did conduct such a house there, (and there seems to be no doubt about that, I understand that question is not contradicted by the defense) then this defendant would be guilty. If however, you are not satisfied, beyond a reasonable doubt that he did lease the premises, knowing that she was to conduct it as a bawdy house, then, your verdict would be ‘not guilty.’ ” We think the charge was a fair and adequate presentation of the meaning of the words “beyond a reasonable doubt” as applicable to the facts of the case. The judgment is affirmed and the record is remitted to the court below for the purpose of execution; and to that end it is ordered that the defendant appear in that [438] court at such time as he may be there called, and that he be by that court committed until he has complied with his sentence or any part thereof that has not been performed.