Commonwealth v. Esper

Opinion by Henderson, J., The defendant was indicted for selling liquor without license. Two defenses were presented: First, that the Act of May 13, 1887, under which the indictment was drawn was abrogated by the eighteenth amendment to the Constitution of the United States; secondly, that there is a presumption that the act of the defendant was done under compulsion of her husband. The first subject was considered in the case of Com. v. Tony Vigliotti, 75 Pa. Superior Ct. 366. The conclusion there was contrary to the contention of the appellant. For the reasons in that case stated, the first, second, third, fifth and seventh assignments are overruled. The fourth assignment challenges the answer of the court to the defendant’s second point which is that there can be no conviction of the wife, the act of the selling being in the presence of her husband and the charge against her being a misdemeanor. No evidence was offered for the defense. The court could not properly have affirmed the point as stated. There is only a presumption that the wife acted under coercion of her husband 390 where the offense charged was committed in his presence, and this is rebuttable. The testimony shows the defendant was actively engaged in business with her husband; that sales were frequent and that each of them participated in the sale of Jamaica ginger from time to time. There is nothing in the testimony to indicate that any compulsion or coercion was exercised, but an entirely contrary state of facts could well have been arrived at by the jury. The evidence leaves little doubt that the sale of liquor under the name of Jamaica ginger was a regular part of the business of the defendant and her husband. The answer of the court was unobjectionable under the evidence: Com. v. Hand, 59 Pa. Superior Ct. 286. The assignments are overruled and the judgment affirmed, and the record remitted to the court below. And it is ordered that the defendant appear in that court at such time as she may be there called and that she be by that court committed until she has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.