
    Burry’s Appeal.
    A baker, who keeps Ms store open for business and sells ice cream, cakes, etc., on Sunday, is guilty of performing worldly employment on Sunday, contrary to the Act of April 22,1794, and the local Acts of February 22,1855, and April 22,1855, relating to Allegheny county.
    In a case of summary conviction, appealed from an alderman into the court of quarter sessions, the record showed that, on a day named, the parties were present in court with their counsel; that witnesses were heard, and the defendant admitted that, on a day named, he sold ice cream, cakes, etc., and conducted his business as upon other days of the week, he being a baker, and having a store room for the sale of such articles; and the defendant “ is, upon the proofs aforesaid, and Ms own admission, found guilty, and convicted of doing and performing worldly employment and business within the county named, on the day named, it being Sunday, contrary to the Act of April 22,1794, and the local Acts of February 22, 1855, and April 26,1855, relating to Allegheny county, the particular acts done and business performed being as follows: keeping his store open for business and selling ice cream, cakes, etc., and exposing the same for sale at a certain place, designated by county, city, street and number and concluded: “ It is therefore adjudged that the defendant forfeit and pay the sum of twenty-five dollars with costs of this suit, to be distributed according to law, and, in default of payment, or of goods to levy upon, he shall be committed to the jail of the county for thirty days.” Held, that the record was sufficient.
    Oct. 29, 1888.
    Appeal and Certiorari, No. 178, Oct. T. 1888, to Q. S. Allegheny Co., to review a judgment on an appeal from a summary conviction by an alderman, at June T. 1888, No. 3.
    The defendant was tried before the alderman June 2,1888, convicted and fined. On June 5, a petition to the quarter sessions, for an appeal, was allowed. The case was tried, and the defendant convicted and sentenced by the court, in an opinion, reviewing the previous legislation, reported in 5 Pa,. C. C. li. 481, by Slagle, J.
    The following was the judgment entered:
    “ And now, June 30,1888, this cause came on to be heard upon appeal from the judgment of J. D. Carlisle, duly allowed, and was heard by J. F. Slagle, one of the judges of said court. The counsel for the parties being present. Mr. W. Wishart and -Dr. John Hamilton, witnesses for the prosecution, being duly sworn and examined, and "W. C. Burry, Dr. E. A. "Wood and Dr. "W. "W\ Cole, witnesses on part of the defense. The defendant admitting that on the 27th day of May, 1888, he had sold ice cream, cakes, etc., and conducted his business as upon other days of the week — he being a baker — and having a store room for the sale of such 'articles. "Whereupon the case was adjourned for consideration.
    “And now, August 11, 1888, having fully considered the evidence offered, the judgment of said J. D. Carlisle is affirmed, and the said W. C. Burry is, upon the proofs aforesaid, and his own admission, found guilty, and convicted of doing and performing worldly employment and business within, the county of Allegheny, the same not being a work of necessity or charity, on the 27th day of May, 1888, the said day being the Lord’s Day, commonly called Sunday, contrary to the Act of Assembly, entitled “An Act for the prevention of vice and immorality and unlawful gaming and to restrain disorderly sports and dissipation,” approved April 22, 1794, and the Act entitled “A supplement to an Act to extend the powei’S of certain officers in Allegheny county,” approved February 22, 1855, and for the better regulation of the Sabbath in said county, approved April 26, 1855, P. L., pages 321 and 322, the particular acts done and business performed being as follows: Keeping his store open for business and selling ice cream, cakes, etc., and exposing the same for sale at No. 39 Ohio street, Allegheny city, Allegheny county, Pennsylvania.
    “And it is therefore adjudged that the said W. C. Burry forfeit and pay the sum of twenty-five dollars with costs of this suit, to be distributed according to law, and in default of payment, or of goods to levy upon, he shall be committed to the county jail of Allegheny county for the period of thirty days.”
    The evidence heard by the court showed that ice cream was sold by the defendant, to a customer, in a paper package, in his store room, connected with his bakery, at about 1 o’clock p. m. on May 27, 1888.
    
      The assignments of error specified the action of the court, 1, in holding that the sale of the ice cream by the defendant was a violation of the Act of 1791, known as the Sunday Law; and, 2, in entering judgment against the defendant.
    
      William A. Stone, for appellant.
    Ice cream is a food and may be dressed or prepared on Sunday for use, and, as it cannot be used unless immediately after dressing or preparation, the Act must be held to mean that it may be sold on Sunday or else the Act gives the right to make it but not to use it.
    It can make no difference whether a customer eats it on the premises or takes it away and eats it in another place. The defendant cannot ask each, customer whether he is a sojourner, traveler, or stranger, because he cannot discriminate between his customers. Com. v. Bosch, C. P. Schuylkill Co., 15 W. N. C. 316.
    
      Wm. Yost, with him Jno. Rebman, for Commonwealth.
    The sale of ice cream, as this was sold, was not a necessity within the meaning of the Act. The necessity contemplated by the Act is the necessity of the man doing the act, not of the person purchasing. Sparhawk v. Union P. R. R., 54 Pa. 401.
    The Act was intended to enforce an observance of Sunday, instead of obliterating it. Johnston v. Com., 22 Pa. 109.
    If ice cream comes within the definition of “ necessaries of life,” still he is guilty, because the Act restricts the delivery of such until after five o’clock in the afternoon, and this was sold and delivered about 1p.m.
    The Act permits the dressing of victuals in bake houses, but the policy of the law shows that the exceptions mentioned in the Act are to be strictly construed, and that the dressing of victuals in bake houses must be held to apply simply to what was necessarily done in bake houses, viz., the baking of bread, etc. The Act does not contemplate a sale or selling of victuals in bake houses, but only extends to the act of dressing, for that was all that was necessary in that particular instance.
    The old Act of 29 Car. n, ch. Y, introduced by Penn and then in force in Pennsylvania, permitted dressing and selling of meat, etc. In our Act the selling is omitted, which is significant.
    Judge Woodward, in Omit v. Com., 21 Pa. 432, says the word “ meat ” in that old Act is the exact equivalent of victuals in the Act of 1Y94. See, also, Splane v. Com., 35 Pitts. L. J. 102; s. c. in supreme court, 35 Pitts. L. J. 256 ; s. o. 11 Cent. R. 168; Com. v. Nesbit, 34 Pa. 409.
    The case of Com. v. Bosch, 15 W. N. C. 316, is not an authority in point. 1, The defendant in that case was a licensed innkeeper, and, 2, he sold the ice cream in Ms inn or tavern. If that case had been taken to the supreme court it would have been reversed. See Friedeborn v. Com., 113 Pa. 244; Splane v. Com., 11 Cent. R. 168.
    Jan. 7, 1889.
   Per Curiam,

The record in this case being sufficient to sustain the conviction, we cannot reverse the proceedings of the court below.

The judgment is affirmed. A. B. W.  