QUARTER SESSIONS.

Com. v. Emenheiser.

Indictment-Libel-Insufficiency.

The indictment, after averring that K was a married man and M. was a married woman, and that they were not married to each other, charged the defendant with unlawfully and maliciously publishing concerning the said K. and M. the following scandalous, malicious and defamatory language, to wit: "K. paste M," meaning that K and M. committed adultery. HELD, to be sufficient.

The information charged the defendant with the publication of a false, scandalous, malicious and defamatory libel of and concerning K. and M., without setting out the publication. HELD, to be sufficient to justify the issuing of a war

raut.

After an indictment has been found by a Grand Jury, it will not be quashed on account of a defect in the indictment.

The fact that the second count does not set forth the libel in haec verba is no ground for quashing the indictment.

Whenever the words are not well known and perfectly intelligible English, parol evidence is admissible to explain their meaning, provided such meaning has been properly alleged in the statement of claim by an innuendo.

Whether the word "paste" expresses the offense charged where it was used or to those who saw the publication, is a question for the jury, under the evidence.

Rule to quash indictment.

J. R. Strawbridge for rule.
A. C. Wiest, contra.

them into public hatred, contempt and ridicule.

The reasons assigned in support of the motion are as follows:

First. The libel is not founded upon any information or complaint.

Second. There is no matter set forth in the second count alleged to be libelous. Third. The indictment does not set forth any libelous matter.

Fourth. The innuendo in the first count enlarges and extends the meaning of the alleged libelous words laid beyond their common and natural sense and import, and that such enlargement is not covered by the introductory averment.

The first reason assigned in support of this motion may be disposed of without The information lengthy discussion.

charges the defendant with the publica-
tion of a false, scandalous, malicious and
defamatory libel of and concerning Geo.
D. Kinard and Nettie Miller, contrary to
the Act of Assembly, but does not set
I am inclined to
out the publication
think this is sufficient to justify the is-
suing of a warrant.

It is not necessary that the information shall contain as full and specific a statement of the offense as an indictment; Com. v. Carson, 166 Pa. 179. Besides, after an indictment has been found by a Grand Jury, it will not be quashed on account of a defect in the information; Com. v. Brennon, 193 Pa. 567. I do not give my unqualified assent to this last decision but until reversed it is the law.

October 17th, 1904. STEWART, J.The indictment charges by way of a colloquium that George D. Kinard is a mar- The second reason assigned in support ried man, having a lawful wife living, of the motion to quash is also without and that Nettie Miller is a married wo merit. The second count is practically man, having a lawful husband living, the same as the first excepting that it and that the said Nettie Miller is not the omits to set out the libel in haec verba. wife of the said George D. Kinard. That However, it refers to them in these words, the said defendant unlawfully and maThe aforesaid false, scandalous, maliliciously uttered and published of and cious and defamatory libel of and conconcerning the said George D. Kinard cerning them, the said George D. Kinand the said Nettie Miller the following ard and Nettie Miller." An indictment, scandalous, malicious and defamatory although made up of several counts, is to language, to wit: "George Kinard paste be regarded as a unit in some respects, Nettie Miller;" thereby meaning, averring and charging that George D. Kinard and Nettie Miller committed the of fense of adultery; the said libel tending to blacken their reputation and to bring

and a formal defect in one count may be supplied by reference to another even though the latter be defective; Com. v. Miller, 2 Parsons 480; Com. v. Paxton, 14 Phila. 665; Com. v. Kaas, 3 Brew

ster 422; Com. v. Hill, 2 Pearson 432; where words which have a meaning in Samson v. Com., 5 W. & S. 385.

ordinary English are yet in the particular instance before the Court clearly used, The third and fourth reasons may be not in the ordinary meaning, but in some considered together, both alleging that particular sense, as are slang and cant the matter of publication is not libelous; expressions. Where they have a special the latter averring that it is not libelous meaning on a particular occasion, a bywithout a colloquium to support it and stander or a witness who saw and read that this is not set out. The Common- the publication may be asked, "What wealth claims that the words published did you understand by the expression were intended to charge the offence of used?" Odgers on L & S. 538, Humadultery. To establish this, it is of phrey v. Miller, 4 Carrington & Payne, course necessary to allege by way of in- 250; Barnett v. Allen, 3 Hurlstone & ducement the marriage state. of the Gorman 375. parties libelled, and this is the only matter necessary to be pleaded by way of Where the words in their popular sense inducement. Had the charge been that convey the imputation of a criminal it was intended that it should be under- charge, either simply or in one or two stood that the offense of fornication had senses, an innuendo is all that is necesbeen committed by the parties, no collo- sary to fix their meaning; Stitzel v. Reyquium would be necessary. The ques-nolds, supra. The words used, if the tion then would be is the innuendo of word "paste" has any such meaning as fornication true.

Wherever the actionable quality of the words arises from circumstances extrinsic of them, averments are esential to show of record that such circumstances existed and to connect the words with these circumstances; Stitzel v. Reynolds, 59 Pa. 488; Gosling v. Morgan, 32 Pa. 273. Of course, it follows necessarily that the circumstances set out in the inducement must be proven before any effect can be given in the innuendo.

room,

contended for, and this is a question for the jury under the evidence; Odgers on Libel and Slander 539, are as capable of conveying the charge of incontinence as the words "caught together." "They were caught together in the packing " with an innuendo of fornication, were held actionable; Evans v. Tibbins, 2 Grant 450. When words are used in a double sense or will bear several meanings the plaintiff may by innuendo aver the meaning with which he thinks they were spoken, and the jury is the proper tribunal to pass on the truth of the inThe defendant, however, contends that nuendo, Ibid. "There is no offense the the word "paste" used in the alleged imputation of which can be conveyed in libel has no such meaning as is assigned so many multiplied forms and figures as to it in the innuendo. Of course, the that of incontinence. The charge is ordinary meaning of the word is not seldom made even by the most vulgar "illicit intercourse," and if we were con- and obscure in broad and coarse lanfined to this ordinary meaning, that guage; Evans v. Tibbins, supra. would be the end of the case. Assuming the defendant to have published the libel, what did she mean by the statement? what did those who saw and read the publication understand by it? It is certainly not an ordinary use of the

word.

The use of the words "paste" to express this offense may be, to us here is, novel, but it may not be where it was used, or to those who saw the publication; it may be a slang, cant or provincial use of it. Whether it is or not is a question for a jury under the evidence, and to them the whole question must be submitted.

Whenever the words are not well known and perfectly intelligible English, but are foreign, local, technical, provincial or obsolete expressions, parol evidence is admissible to explain their mean- The motion to quash is overruled and ing, provided such meaning has been the defendant directed to appear at the properly alleged in the statement of claim next term of the Court of Quarter Sesby an innuendo. The rule is the same sions and plead to the indictment.

Com. v. Mikesell et al. Liquor laws-Act of June 9th, Brewers-Sale by agent.

Under the Act of June 9th, 1901, it is unlawful for a brewer to sell his product at any other place than at the brewery or at the place at which he is licensed to conduct his business.

A delivery by a brewer to his agent in another part of the county and a sale by the agent from that place is unlawful.

Selling liquor without license.

Motion allowed.

OPINION.

The court has approved the action of the District Attorney and allowed his motion to enter nolle prosequi in the above case upon the payment of costs for the reasons set forth in his motion. Ordinarily to November 11, 1904. MCILVAINE, P. simply endorse upon the District AttorJ.-Comes Owen C. Underwood, Disney's motion "reasons approved and motrict Attorney, and moves the court for tion allowed" would be all that it would leave to enter a nolle prosequi in each of be necessary for the court to do to make the prosecutions docketed in the numbers up the record, but in these cases we feel and term and in support of his motion submits for consideration of the court the following statement of facts:

that it is our duty as requested to file of record a word of warning to those who have been indirectly involved in these "The defendants are residents of West prosecutions. The defendants named in Bethlehem township and have been dur- the indictments it is said were in the eming the last year acting as agents in ploy of brewers who hold license from taking orders and delivering beer for the this court and were acting for them in Washington Brewers in and about Scen- making deliveries of beer in the neighery Hill Ellsworth mines Nos. 3 and 4. borhood of Scenery Hill, and it is claimThe county detective under my direc- ed that what the defendants did was lawtions had prosecutions instituted against ful because the brewers for which they the defendants, the principal purpose severally acted held a license to sell beer being to secure from the court an inter- anywhere in Washington county. This pretation of the Act of 1891, and to stop raises a question that involves an inter(if it is unlawful) the sale of beer by the pretation of the Act of June 9th, 1901, agents of the breweries that are found at under which licenses to brewers are different points in the county. Beer is granted and under the Act of Assembly delivered by the brewers to the agents which prohibits the sale of vinous, spiritand the agents take orders and fill them ous, malt or brewed liquors by any one from the beer sent them by their principals. They claim this is a sale made by the brewers (throug them) and that the license which the brewers holds justifies such a sale. The Commonwealth claims that a brewer's license does not justify a sale of beer at any point in the county other than the brewery where it is made. "The defendants have proposed to pay the costs of prosecution in these cases and to hereafter faithfully abide by the interpretation that the court may put upon the Act of 1891, and to wholly abandon the business they have been doing if it is held to be unlawful, and I have consented to accept their proposition if the court approves and will file an

without having first obtained a license so to do from the Court of Quarter Sessions and which provides pegalties for the unlawful sale thereof.

Under the different Acts of Assembly which constitutes the license system of this State, all sales of intoxicating liquors are forbidden unless the person desiring to sell first obtains a license. This puts on every man who makes a sale the burden to show that he has such a license. Prior to the Act of 1891, license was granted to brewers to sell malt and brewed liquors at a particular place named in the petition, to wit, at the brewery where the liquor was manufactured, and nothing was set out in the Act of Assembly

then in force in reference to the delivery they will be expected from this time on of the liquor sold. But the Act of 1891 to observe the law as we have construed provides as follows: "That all brewers it. These agencies at different points in and agents having stores or offi- the county to sell and deliver beer or ces dealing in intoxicating liquors to fill orders there taken out of shipment shall pay for each separate brewery previously made should be discontinued. or agency an annual license All orders must be sent to the brewery vided that and filled directly from there and no packages should be taken from the brewery for delivery for which an order has not been previously entered on the order book at the brewery, and no orders should be filled which come from any one who intends to sell and deliver to others the beer he has ordered unless the person

pro brewers shall be permitted to deliver their products within the county where the license is granted and all wagons for the purpose of delivering liquors shall have marked on the sides there of the name of the license and the number of his license in figures not less than four inches long."

giving such order has also a license to

sell.

doz.

Under the provision allowing the liquor to be delivered at any point in the county, it has been contended that a brewer can We have always been of the opinion sell the liquor he manufactures any place that license courts have no authority in in the county and that he cannot be con law to make rules directing how a pervicted of selling malt or brewed liquors son receiving a license shall conduct his without a license, if he has a license and business. This the legislature has done the sale is made at any place within the and we cannot supply any omission that county, and this contention has been sus-it has made. But we do not think it imtained in one of the Courts of Quarter proper to make suggestions which if fol Sessions of the State; but such is not the lowed will tend to lesson the grounds of law as we view it and as declared by most complaints that are so often made against of the courts of the State. We hold that those engaged in the liquor business. the Act of 1891 does not give licensed And in this connection we would make brewers the right to sell their beer at any one to the brewers, and that is this, place except their brewery, but it does that they each provide a blank order give them, after the beer has been sold book containing printed skeleton orders or ordered at the brewery, the right to act in this form: "The day of, 1904, for the purchaser and deliver the beer at - o'clock - m., - keg and any point within the county he may in- bottles for to be delivered at, order dicate. It follows that agents or em- received from by," and also cards ployees of a licensed brewery located, say on which are printed the same skeleton in the borough of Washington, cannot order. Whenever an order is received sell at Scenery Hill or Ellsworth mines, at the brewery, let it immediately be enbeer which the brewer had previously tered in the order book and on one of shipped to these places or which he had these cards by filling in the date, the there stored in a room or buildiug, nor hour, the name of the person for whom can they sell from the brewer's delivery the beer is ordered, the house, room or wagon. Brewers by their agents or em- place at which it is to be delivered, the ployees can only deliver (in delivery the name of the person sending or giving wagons properly numbered) beer which the order and how sent or given, whether has been previously sold or ordered at by letter, postal, 'phone, wire or in perthe brewery. Beer cannot be shipped or son. Then when a wagon is loaded for hauled from the brewery to any certain place and then an agent of the brewery at that point take and fill orders from the beer thus shipped or hauled. The specific packages or cases of beer must be ordered or sold at the brewery before they are shipped or hauled away from it.

If the brewers which hold license from this court have heretofore placed a different construction upon the Act of 1891

delivery let the orders filled be checked off the order book and let the driver have the cards that cover every package that he is to deliver from that loaded wagon. Let no employee take from the brewery any package not previously sold and entered upon the order book, and let the deliveries be made only to the persons and at the places named in the orders. And in making the deliveries use only

the numbered wagons required by law. Brewers should understand, that although they are engaged in a lawful business, yet it is a business that is, under the law, regulated and restrained and that the regulations and restraints put upon it must be observed. A man or a corporation that disregards the requirements of the law or exercises his rights in disregard of the rights of others, cannot expect to continue very long in busi

ness.

As the purposes of these prosecutions was to secure from the court an interpretation of the proviso of the Act of 1891 as to the right of brewers to make delivery of their products anywhere within the limits of the county rather than to punish the defendants who were supposedly acting for and under the advice of the brewers, we approve the action of the District Attorney in moving for the entry of a nolle prosequi upon the payment of the costs, and would suggest that he have the county detective notify not only the brewers involved in these prosecutions, but all the brewers of the county of the interpretation that the court has herein put upon the Act of 1891, and they will be expected to conduct their business accordingly.

Q. S. of

In re Missimer.

The Act of May 27, 1841, P. L. 404, declares that "in all cases where, by law, the coroner of any county is required to hold an inquest over a dead body, it shall be lawful for a justice of the peace of the proper county to hold the same where there is no lawfully appointed coroner or he is absent from the county unable to attend, or his office is held more than ten miles distant from the place where the death occurred." This act further provides that no fee shall be allowed unless able cause for holding the inquest. the court adjudges that there was reason

The justice's right to hold an inquest over a dead body is purely statutory. The office of justice of the peace carries Prior to the with it no such powers. Act of May 28, 1841, he had no authority to hold an inquest over a dead body; Ex parte Schultz, 6 Whar. 269.

The Act of March 30, 1897, under which the claim is made, does not name any one other than the coroner to make an inspection. The act provides for compensation to the coroner where he is called, views a dead body, and certifies that no inquest is necessary. This act covers cases where no inquest is necessary, while the Act of 1841 limits the services of the justice and his compensation to cases where an inquest is necessary. Montgomery Co. The Act of 1841 does not invest a justice of the peace with the functions of a coroner. The justice does not become a coroner, but in certain specified cases performs the same duties that are required of the coroner. How then can it be said that the giving of additional powers to the coroner confers like powers upon a justice of the peace? The Act of holds an inquest, and for his services at 1841 gives him compensation where he such inquest. But where is the statutory authority for claiming fees when no inquest is held?

When a justice of the peace views a dead body and decides that no inquest is necessary, he is not entitled to compensation provided under the Act of March 30, 1897, P. L. 8.

Application for compensation and rule to show cause why an allowance should not be made.

J. P. Hale Jenkins for County Com

missioners.

A. H. Hendricks for Merit M. Missi

mer.

September 19, 1904. SWARTZ, P. J.— For the same reason it was ruled that The justice viewed the dead body of a deputy coroner appointed is not entitled Mayberry E. Willman, as also the bodies to compensation where no inquest is held; of Gottfried Goldschmidt and W. How- Fayette County Deputy Coroner's Case, ard Mason. He decided that no inquest 29 Pa. C. C. R. 641. was necessary, and so reported to the In the absence of any statute conferrcourt. He claims compensation under ing on the justice the authority given to the Act of March 30, 1897, P. L. 8. He the coroner under the Act of 1897, and contends that he is entitled to the same in the absence of any authority for comcompensation that is due the coroner pensation except where an inquest is held, where the latter views a dead body and the application is refused and the rule enreports that no inquest is necessary. tered in each case is discharged.