
    Commonwealth of Pennsylvania v. Joseph Smith, Appellant.
    
      Liquor law— Club .sales.
    
    An unlicensed sale of liquor, under guise of club distribution, would be clearly unlawful and the law will look through all disguises and so pronounce it.
    Where however a bona fide organization with a selected membership made up of reputable persons, really owning its property in common, and formed and carried on for purposes to which the furnishing of liquor to its members without profit was merely incidental, and where such club is not a scheme to evade the license law, the fact that the club members are able to procure and pay for liquor on the premises does not constitute an illegal sale thereof.
    The purpose of the club system is to distribute the advantages, comforts and luxuries of the club among members so there shall not be unequal contributions to the treasury which purchases them. Members are all owners of the property when purchased in equal shares and if a division were then made, each would then be entitled to an equal share of the liquor, but one consumes his share and that of the others who do not drink liquor and he puts back into the common treasury the value of the others’ shares; therefore, although by consumption the division is not equal, yet it is made equal by the contribution to the treasury, that has neither lost nor gained, consequently the distribution is equitable. Such contribution does not constitute a sale. There is no element of bargain, only a method of distribution of the common property.
    
      Practice, Superior Ct. — -Assignments of error — Rule XVII.
    
    Where an assignment of error relating to the admission or rejection of testimony is so drawn that it does not show the testimony adduced or proposed to be adduced under the offer admitted or rejected, but merely discloses a question propounded and objected to and admitted or refused, it is not in conformity with rule XYn. and will be disregarded.
    
      Practice, Superior Gt. — Assignments of error — Unanswered question.
    
    Even where the objections to questions asked, which are overruled, are well taken, yet when the witness did not in point of fact answer such questions the error in overruling the objection, as it did no harm, is not proper ground for assignment of error.
    
      Practice, Q. S. — Improper remarks by counsel.
    
    The prosecuting attorney in criminal cases is so far counsel for the defendant that he ought not to permit himself nor be permitted without correction, if objection is promptly made, to assert in his closing argument to the jury the existence of criminating facts of which there is no evidence in the case.
    
      Practice, Superior Gt — Remarks by counsel — Improper assignment of error.
    
    An assignment of error for “permitting ” improper remarks by counsel is not sustained by the record where the record does not affirmatively show that the court “permitted” the counsel to make the remarks or that the judge’s attention was called to them at the time they were made or at any time when he could have prevented or counteracted their harmful effect, or that he was asked to do anything concerning them.
    An assignment will not be sustained when neither of the methods recognized in Com. v. Weber, 167 Pa. 153; Holden v. Pa. R. R., 169 Pa. 1, and Com. v. Windish, 176 Pa. 167, for bringing the remarks of counsel upon the record, so that the action of the trial court with reference thereto can be reviewed by the appellate court, was adopted.
    Argued May 11, 1896.
    Appeal, No. 15, April T., 1897, by defendant, from judgment of Q. S. Washington Co., Nov. Sess., 1895, No. 84, on verdict of guilty.
    Before Rice, P. J., Willard, Wickham, Reeder, Orlady and Smith, JJ.
    Reversed.
    Quarterly return of W. S. Tidball, constable of tlie second ward of Monongahela City, made to court of quarter sessions, Washington county charging tippling and unlicensed houses. “ Joseph Smith and Joseph Kloman are selling whisky and beer without a license.” Before Taylor, J.
    There was evidence establishing or tending to show the following facts:
    The defendant was a member, and the janitor or steward of a chartered association styled “ Turn and Gesang Yerein Eintracht of Monongahela, Pa.,” which is a branch of the National Turners Association of North America. As appears by the charter the association was formed “ for the purpose of promoting music, vocal and instrumental, employing a competent person to impart instruction therein, erecting, establishing and equipping a gymnasium and the erection of a hall or building wherein the above purposes may be carried out and conducted and entertainments of a public or private character may be given.” The association occupies the entire third story of a building in Monongahela City in which are its gymnasium, library, music hall, asse:nbly and reading rooms.
    These rooms which are open every day and evening are used as a place where the members meet for social intercourse and are in the charge of the janitor or steward. The association has a membership of about one hundred. Members must be at least twenty-one years of age, and to obtain admission their good character must be vouched for and a written application must be made which after lying over ten days is then voted on. The children and wives of members are admitted to the privileges of the gymnasium and music rooms, and the association employs instructors in vocal and instrumental music, dancing and gymnastics. There was evidence that aside from this no one is admitted to the rooms except the members and their guests, and that no one is admitted as a guest who resides within three miles of Monongahela City. Members are required to pay an initiation fee and regular dues, but the amount of these is not stated in the evidence. The affairs of the association are managed by a president, secretary, treasurer and board of trustees. A stock of liquor was purchased with the funds -of the association and placed in charge of the defendant which he furnished to such members as desired it in the following manner. The trustees sold to the members checks or ■tickets which they would exchange for liquor or beer. On some occasions the trustees left thern with the defendant, and members desiring them could obtain them from him, he turning over to the trustees the amounts received. The defendant claimed that the association did not make a profit on the liquors thus furnished, the proceeds being used to replenish the stock from time to time. The evidence was uncontradicted that the defendant was paid a salary of $20.00 a month out of the treasury of the association for his services, and he received no profit out of the liquors.
    The charge of the court was as follows:
    The defendant, Joseph Smith, has been indicted by the grand jury for a violation of the act of assembly, passed in 1887, and commonly known as the Brooks act, in which the title to that act states that it is to restrain and regulate the sale of vinous, spirituous, malt and brewed liquors, or any admixtures thereof; the purpose of the act being, then, to restrain and regulate the sale of these classes of liquors. The act itself then proceeds to set forth, that it shall be unlawful to keep or maintain any house, room or place, hotel, inn or tavern where any vinous, spirituous, malt or brewed liquors, or any admixtures thereof, shall be sold by retail, except a license therefor shall have been previously obtained as hereinafter provided, and that provision for obtaining a license is by application to the court, and after a hearing under the rules and a compliance with the first section of the act of assembly relating thereto, a license is granted or not granted. Under the act of assembly, gentlemen of the jury, there are no persons that can engage in the sale of these classes of liquors, except they previously obtain a license from the court so to do, or that they shall fall under the class — if we may call them a privileged class — mentioned in the 16th section of the act, which says that druggists and apothecaries shall not be required to obtain a license under the provisions of this act, but they shall not sell intoxicating liquors except upon a written prescription of a regularly registered physician; alcohol, however, or any preparations containing the same, may be sold for scientific, mechanical and medicinal purposes.
    Now, the defendant in this case may be said to be indicted— is indicted, under the first section of this act of assembly. [It would be a matter of defense here for him, if he had a license, to set it up, or if he came within the provision or was a practicing apothecary, as described in the other section of this act. It is not contended, however, upon his part that he has any such license, or that he falls within any of the provisions of the act of 1887, which would entitle him to sell vinous, spirituous, malt or brewed liquors or admixtures thereof, unless he has a right to sell them as steward or janitor of a club such as was in existence, and of which he was acting as janitor or steward in this case — this Eintracht Singing Society, which has been described in your hearing, which is a corporation, organized for the purposes stated in the charter which was read in your hearing and which contains no provision in it for the sale of any of the liquors coming within the prohibited classes. The only claim, then, gentlemen of the jury, if the testimony in this case is true — and it is really undisputed as to how the defendant did-sell or did furnish the liquors which is claimed by the commonwealth as amounting to an unlawful sale, and which the court will hold was an unlawful sale, if the facts are as have been testified to here] [6]- — but upon those facts you are to pass, gentlemen — [I say it is claimed that he, being a steward of this club, or the janitor, had a right to dispense liquors to the members of the club. Now, gentlemen, you can readily see, if that thing is carried out, to what it would lead. We take the act of assembly and we find in it nothing that gives the defendant any right to dispense liquors in that club. It is true, as has been stated here, that there is nothing to prevent us, under our personal rights, belonging to a club, and that we may have liquors there for our own use but, as I understand this law, not in the sense that has been testified to here, or in the manner that has been testified to in this case.] [7] We would have a right, without violating any law, to belong to a club of this kind, whose purposes are perfectly praiseworthy, and to take our stock of liquor there or to send a man with them there and have them kept where we could get at them, and where we could take our friends; [but to hire a man, and have liquors shipped in there in bulk, and have a counter, and buy checks from that man who dispensed the liquor, and pay him the money, and not be limited as to quantity or anything of that kind, it is a question for you to say, gentlemen of the jury, whether it is not an open bar without the legality that surrounds a bar that has a license.] [8]
    
      Now, we will construe the law as we understand it to be— that a party, to engage in the lawful sale of liquors, must have a license. [If he has not a license to dispense liquors, either directly for cash, or by a system of checks — because we will say to you that the checks used here would simply be an attempt to evade the law if they were used to surround tins transaction with a legality that, otherwise, it didn’t have — and it was admitted by counsel, I believe, that the money could have passed just as well as the cheeks] [9] [if this was legal under this act of assembly under which the defendant is indicted, as it was carried out in this particular place, as we interpret this law, it would amount to a substitute for the license laws entirely.] [10] [The right to set up and maintain a place and carry it on as this was in Monongahela City, would carry with it the right to set up a dozen or more places, and you can readily discover that there would be no necessity for the license laws at all;] [11] because with a hundred people belonging to this society, and a hundred to another, and so on, the entire population of the place could become members of these different organizations and in that way completely nullify the act of assembly which required that this class of liquors should be restrained and regulated by licenses by the courts; it would do away with it entirely.
    Now, gentlemen of the jury, we do not intend to review the evidence. [You will bear in mind how these liqrxors were sold and how they were paid for, and where they were drank — how they were drank; and also the evidence in the case on the one side that a fund was derived from which not only the stock of liquors was replenished, but that it was used for other purposes of the society, as for laudable purposes, charitable purposes, but none the less bringing the sales made here clearly within the prohibitive part of this act of assembly.] [12] On the other hand, some of the witnesses testified that this money did not go to any other purpose but to replenish the stock of liquors. Now, that is a question for you, and we say to you that there are some courts below, perhaps, that hold that liquors may be put in a club like this, or some place similar to this, and dispensed, where the purposes are not to evade the law by a. subterfuge or cover, or to make a place particularly convenient for a large class of men to get their liquor where, otherwise, - they couldn’t get it under the license system; but to take it there and use it, with their friends, be the sole owners themselves, individually, of the particular stock they use — that that would not be a violation of the law; but you can readily see, gentlemen of the jury, there are two or more ways in which that can be conducted, and be a violation, clearly a violation of the act of assembly on the one hand, and perhaps not on the other.
    Now, it is for you to say, under all the evidence in this case, whether or not this singing society dispensed liquor there in violation of the law as we have given it to you, and particularly this defendant. And we have nothing further to say to you, except that the counsel for the defendant have asked the court to charge you:
    1. The act under which the defendant is indicted is a penal statute, and does not prohibit two or more persons or any number of persons from contributing to a common fund for the pur chase of liquors and receiving vouchers therefor entitling them to receive a proportionate share of the liquors purchased. Nor does it prohibit such persons from employing a janitor or steward to serve the said liquors to the persons contributing to said fund.
    Affirmed as a proposition of law, but it is for the jury to say whether what was done by the defendant in this case brings him within the proposition covered by this point. [13]
    2. In order to convict, the commonwealth must prove beyond a reasonable doubt that the defendant, Joseph Smith, did receive money or other valuable consideration in exchange for malt, brewed, vinous or spirituous liquors, or did offer the same in exchange for money or other valuable consideration. To constitute a sale the absolute or general property in the thing sold must pass from the seller to the buyer. If the defendant acted only as a steward, and set out the liquors to those who had contributed to the fund, and had no interest in the fund except as a common contributor, he cannot be convicted.
    Affirmed,- if the jury find from the evidence the facts to be as stated in this point. [14]
    3. If the jury find from the evidence in the case that the defendant, Joseph Smith, at the time of the furnishing or sale of the liquors named in the indictment, was a member of a chartered club or association, and acted as a janitor or steward thereof, and furnished such liquors only to members of the association, and that the liquors so furnished were purchased with the funds of the association, and that neither the defendant nor the association derived a profit from the sale or furnishing of said liquors to its members, their verdict should be not guilty.
    Under the undisputed evidence as to how the liquors were furnished by the defendant in this case, this point is refused. [15, 16]
    Gentlemen of the jury, it is your duty to be satisfied of the defendant’s guilt beyond a reasonable doubt. If you have any reasonable doubt as to his guilt it is your duty to acquit him,— give him the benefit of the doubt and acquit him; if you have not, it is clearly your duty to find him guilty. This being a misdemeanor, if you should find him not guilty you must dispose of the costs. [The return here was made (some reference has been made to it by counsel) at the direction of the court, who received notice asking the court to instruct the constable, if he failed to make a return on a particular day, to call his attention to the matter, to this particular place. And in pursuance of that Mr. Tidball, the constable, was directed to go back to Monongahela City and make an investigation. He was called here in court, on the day he made his return, which was on the blank usually used, and these notices, which had been sent to both Judge Mcllvaine and myself, were handed over to the constable and he was asked if he knew anything about it; and he was directed by the court to go back and make an investigation, and you heard him on the stand state what he did in pursuance of that direction; and he appears here as a public officer and the prosecutor in this case; and where you acquit, it is your business to dispose of the costs in a misdemeanor, and you should not put them on a public officer where he has acted in the line of his duty and had reasonable grounds for instituting the prosecution. If you convict, however, you have nothing to say about the costs.] [IT]
    On behalf of defendant exception noted to the general eharge and answers to points.
    Verdict of guilty, with a recommendation to the mercy of the court. Defendant was sentenced to pay costs and a fine of $500, and. undergo imprisonment in the workhouse for three months. Defendant appealed.
    
      jErrors assigned were, (1) in overruling the objection to the form of question and testimony of Eugene Craven, a witness called in behalf of the commonwealth, as follows: “ Have you within two years past gotten any liquor, beer, ale, whisky, wine, from Smith ? ” Objected to as incompetent and irrelevant. By the Court: Objection overruled, exception for defendant, and bill sealed; (2) in overruling defendant’s objection to question by district attorney to Eugene Craven, a witness called by the commonwealth, as follows: The refreshment attachment, including the drinks that you testified you had on yesterday, in which it was shown Mr. Smith was found at the time he was visited, was a part of the place for the education of your families and children, was it? Objected to as leading, irrelevant and improper, this being a witness for the commonwealth. By the Court: Objection overruled, exception noted for defendant, and bill sealed.
    (3) In overruling defendant’s objection to question put to defendant, Joseph Smith, on cross-examination, as follows: “Is there any place in the charter authorizing this company to sell liquor? A. We are not selling. Q. Will you answer my question?” Objected to as incompetent. By the Court: 'Objection overruled.
    (4) In permitting the private counsel, Mr. Parker, for the commonwealth, to make use of the following statements, in the course of his argument to the jury, to which exceptions were taken at the time' by defendant’s counsel:
    “ Nothing does more to bring into disrepute courts of justice, than what has been done in this case from beginning to end.”
    “ Tire evidence of good character offered by the defendant, has no bearing on the question in any way, and its introduction in this case was for an improper purpose.”'
    “ I say that no court in Christendom, or heathendom either, ever held that sales such as these were held to be legal.”
    “ If they want, every citizen in Monongahela could go to this bar every day in the year, and obtain what liquor they wanted.”
    “ That if Smith had had time to have gone back to Germany, and the trustees were here, there would be no testimony about sales of tickets by the trustees.”
    “We have a bar there, open Sunday, Monday or any other day.”
    (5) In sustaining the objection to the testimony of Eugene Craven, a witness called in behalf of the commonwealth, on cross-examination, relating to the character of the club, and the manner in which it was conducted, as follows :
    Q. How does it compare with other gymnasiums ? A. Well, I have traveled around, I have been in ten or fifteen different states in the union; been in other societies; I never in all my travels, all my experience, been in Pittsburg, St Louis, Cincinnati, Cleveland, all our eastern states, — I never in my life met with a club that was managed and conducted in such a straightforward and gentlemanly manner in every respect as this one was in Monongahela. They live up to their by-laws, and then another thing — this is in a manner — it is conducted in a charitable way. Now, we donated there at one time — I believe it was $50.00 or $100; I am not sure; towards the—
    Objected to as incompetent and irrelevant.
    And further, the court erred in making the following comment in sustaining the objection. The Court: “We do not think this is competent. We do not see that the fact that this is a club, or an incorporated club, makes it different from any other club if intoxicating liquors were disposed of there by systems of checks, which represented value or money. The question is, were liquors furnished there in violation of the law ? (6-12) errors in portion of the judge’s charge, reciting same; (18-15) error in answers to defendant’s points, reciting same; (17) in charging the jury as to the contents of an anonymous letter received by the court asking that this return be directed, said letter not having been introduced in evidence.
    
      Charles G. McIlvain, and Jno. M. Braden, for appellant:
    — The testimony does not disclose the fact that this club was a mere scheme or device to evade the license laws, which would bring it under the authority of Com. v. Tierney, 148 Pa. 552; Com. v. Carey, 151 Pa. 368. The act of 1887 is penal in its character and must be strictly construed: Com. v. Fleming, 130 Pa. 138. The fact that clubs of the nature of this one are not included within the provisions of the act of 1887 has an impor tant bearing upon the meaning to be placed upon the provisions of the act, and in this connection the construction placed upon this penal statute by public officers charged with the duty of executing its provisions for many years may properly be taken into consideration as determining the legislative intent. Such has been the law in other states: Potter’s Dwarris on Statutes, 188, 184; People v. Daton, 55 N. Y. 367-878; Brown v. U. S., 113 U. S. 568. The courts in this state have never declared that dispensing liquors to club members amounts to a technical sale by the club: Klein v. Livingston Club, 5 Dist. Rep. 85. If it is desired to reach the clubs and make the transaction an object of state control, it must be by new legislative enactments and not by judicial legislation upon any of the present sale statutes: Covington in Penna. Law Series, 347. The most recent case on the subject is the case of New York v. Adelphia, decided April 7, 1896. The section of the license law of New York under which the case was tried was similar to the section of our Brooks law. See Laws of New York, 1892, sec. 31 of chap. 401; People v. Andrews, 50 Hun. (N. Y.), 592; see also 11 Am. & Eng. Ency. of Law, 727; 22 Am. & Eng. Ency. of Law, 810; Black on Intoxicating Liquors, sec. 142; Graff v. Evans, L. R. 8 Q. B. Div. 373, and State v. St. Louis Club, 26 L. R. A. 573.
    October 19, 1896:
    
      W. S. Parker, with him T. B. H. Brownlee, district attorney, for the commonwealth.
   Opinion by

Rice, P. J.,

We agree with the court below in holding that the system of checks adopted by this association did not make the transaction essentially different from what it would have been if the members had paid the janitor or steward directly for the liquor furnished, and he had turned over the money to the association. We agree also, that if the object of an association is merely to provide members with a convenient method of obtaining intoxicating drinks whenever they desire them and if the form of membership is no more than a pretense, so that any person without discrimination can procure liquor by signing his name in a book or buying a ticket or a check, thus enabling tbe seller to conduct an illegal traffic under the guise of a club distribution, the fact that the organization is a chartered institution will not protect the seller: Black on Intoxicating Liquors, par. 142. This was decided in Com. v. Tierney, 148 Pa. 552, and was substantially reaffirmed in the late case of Klein v. Livingston Club, where Justice Dean says: “ If this were an unlicensed sale, under the guise of club distribution, it would clearly be unlawful; the law would look through all disguises, and so pronounce it.” But there was evidence that this was a bona fide organization with a selected membership made up of reputable persons, really owning its property in common, and formed and carried on for purposes to which the furnishing of liquor to its members without profit was merely incidental. Of course it was for the jury to determine what the facts were; all that we are required to say, or do say, is, that there was ample evidence to warrant a jury in finding the foregoing facts. Assuming, then, that a jury might find that the transaction was a furnishing of liquors by a bona fide club to its own members without profit, each paying for the share of the common stock furnished to him, and that it was not a scheme to evade the license laws, the question arises whether it was an illegal sale. At the time the case was tried, tins was an unsettled question concerning which conflicting opinions were held. Since that time it has received thorough and deliberate consideration by the Supreme Court and has been resolved against the contention that such a transaction is an illegal sale within the meaning of the act of May 13, 1887, known as the Brooks Law: Klein v. Livingston Club, 177 Pa. 224. Says Justice Dean : “ The purpose of the whole system is to distribute the advantages, comforts and luxuries of the club among the members so that there shall not be unequal contributions to the treasury which purchases them. They are all owners of the property, when purchased in equal shares, and if a division were then made, each would be entitled to an equal share of the liquor; but one consumes his share and that of the others who do not drink liquor, and he puts back into the common treasury the value of the other’s share; therefore, although by consumption the division is not equal, yet it is made equal by the contribution to the treasury, that has neither lost nor gained, consequently the distribution is equitable. Does this constitute a sale? We think not; there is no element'of bargain, only a method of distribution of the common property.” Applying these principles to the facts which a jury might well have found from the evidence before them, the court below should have charged the jury, that, upon such a state of facts, the transaction would not be an illegal sale for which the defendant could be convicted. Separate discussion of the several assignments of error raising this question is unnecessary. So far as the rulings specified therein are in conflict with the foregoing conclusions, the assignments are sustained.

The other assignments .will be briefly considered in their order:

First assignment. This is not in accordance with rule XVII. because the answer of the witness is not given. The reasons for this rule and the importance of conforming to it are so clearly shown in Battles v. Sliney, 126 Pa. 460, that we need only refer to that case.

Second assignment. Even if the objection that the question was leading was well taken, yet as the witness did not answer, no harm was done. If it was apparent that the only purpose of the question was to ridicule or humiliate the witness, who had been called, by the counsel putting it, it should have been rejected on that ground. But of this the trial judge was better able to judge than we, and we are not clear that he erred in the exercise of his discretion in that regard.

Third assignment. As the charter had been put in evidence it was incompetent and a mere waste of time to ask the defendant what its provisions were. But as he did not answer the question the error in overruling the objection did not harm him.

Fourth assignm ent. The stenographer’s notes show that, after the evidence was closed, but whether before or after the jury were charged does not affirmatively appear, the counsel for the defendant asked “ to have the remarks of the district attorney in his argument, to which they desire exceptions, to be placed on the record.” Then follow the remarks quoted in the assignment, and then the notes show that an exception was noted and a bill sealed for the defendant. The assignment is that the court erred in permitting the counsel to make the remarks quoted. Some of the statements alleged to have been made by counsel were outside reasonable limits and we remark generally that the prosecuting attorney in a criminal case is so far counsel for the defendant that he ought not to permit himself, nor to be permitted without correction, if objection is promptly made, to assert in Iris closing argument to the jury the existence of criminating facts of which there is no evidence in the case. But we are not clear that the assignment is sustained by the- record. The record does not affirmatively show that the court “ permitted ” the counsel to make the remarks, or. that the judge’s attention was called to them at the time they were made, or at any time when he could have prevented or counteracted their harmful effect, or that he was asked to do anything concerning them. Neither of the methods recognized in Com. v. Weber, 167 Pa. 153; Holden v. Penna. R. R., 169 Pa. 1, and Com. v. Windish, 176 Pa. 167, for bringing the remarks of counsel upon the record, so that the action of the trial court with reference thereto can be reviewed by the appellate court, was adopted. We are therefore unable to sustain the assignment.

Fifth assignment. This is overruled for the reason that the record does not show that the ruling was excepted to at the time.

Seventeenth assignment. The learned judge did not charge the jury as to the contents of an anonymous letter not put in evidence. He did speak of a notice he had received in consequence of which he directed the constable to investigate the case. This explanation of how the return came to be made ought to have been unnecessary, but it was evidently called out by remarks of counsel. Its only effect was to show that the costs ought not to be put on the constable in case of acquittal. If the language of the charge had been quoted totidem verbis in the assignment as rule XVI. requires, its purpose would have been apparent, and it would also have been seen at once that it did not harm the defendant.

Judgment reversed and a venire facias de novo awarded.  