#### CHARLES STEWART v. THE COMMONWEALTH.

ERROR TO THE COURT OE QUARTER SESSIONS OE BUTLER COUNTY.

Argued October 19,18S7 —

Decided November 7, 1887.

1. While a court may regulate the exercise of the right of a defendant in a criminal prosecution to be heard by counsel before the jury, yet the right to be so heard is a constitutional right and it is beyond the power of the court to deny it altogether.

2. Evidence that a defendant, indicted for the unlawful sale of liquors under § 15, act of May 13, 1887, P. L. 113, as the agent of a licensed distiller doing business at a distance, solicited and received orders and money for liquors by the gallon, and, after the orders were filled by the distiller to whom they were addressed, delivered the packages containing the liquors to the persons ordering, is sufficient to authorize a conviction.

Before Gordon, C. J., Paxson, Sterrett, Green and Williams, J J.; Trunkey, and Clark, JJ., absent.

No. 232 October Term 1887, Sup. Ct.; court below, No. 32 September Term 1887, Q. S.

On September 7, 1887, a bill of indictment, preferred under § 15, act of May 13, 1887, P. L. 113, charging that Charles Stewart “ unlawfully did sell and give away vinous, spirituous, malt and brewed liquors and admixtures thereof, without having first obtained a license,-etc.,” was found a true bill, to which the defendant pleaded not guilty.

At the trial before A. L. Hazen, P. J., the facts appeared: At the time of the alleged unlawful sales, the defendant was in the employ as soliciting agent of one George Stahl, the owner and operator of a distillery in the borough of Zelienople, about 20 miles from the place where the orders were received. Stahl had paid his annual tax for a distiller’s license to the county treasurer, and his warehouse where his liquors were kept for sale was in Zelienople near his distillery. The defendant in July, 1887, had taken orders, partly written, partly printed, from two persons, each for one gallon of whiskey. *379The other material facts appear in a point which the defendant submitted for instructions, quoted infra.

At the close of the evidence the court announced that the case would be submitted to the jury without argument of counsel. Defendant’s counsel asked their constitutional right for the defendant to have the jury pass upon the law as well as the facts, and their constitutional right to present their case, and argue it too, before the jury.

By the court: The defence have a full right to be represented by counsel, and have a full and ample opportunity in this case, but there is nothing, in the judgment' of the court, to justify wasting time arguing; exception.5

The point referred to, with its answer, was as follows:

3. It having been proven that the defendant' was in the employ of George Stahl, a legally licensed distiller, in the borough of Zelienople, Butler county, Pa., and that the witnesses for the commonwealth gave the defendant, as agent for Geo.' Stahl, written orders on his principal, George Stahl, for the liquor, and that George Stahl in pursuance of these orders given him by the defendant, filled up the liquor in gallon jugs, sealed them and set them apart to the defendant, who subsequently delivered them to the purchasers at their request, at the place of their residence, that in law the sale was completed when set apart in Zelienople, and the legal title to the liquor then and there passed to the purchasers; and the defendant having carried them to them, at their request, in law was acting as the agent for the purchasers, and the sale being complete in the borough of Zelienople, there can be no conviction in this case, because it was a legal sale, made by a legally authorized distiller in the borough of Zelienople, and not a sale by the defendant, who was acting as agent or in the employ of George Stahl.

Answer: Refused; and we say to the jury that we understand the law to be that the sale was complete when the liquor purchased and paid for was delivered by the defendant.1

The court charged the jury that, if they believed the witnesses and were satisfied beyond a reasonable doubt that the defendant received the money and delivered the whiskey as alleged, the verdict should be for the commonwealth.8

The jury returned a verdict of guilty, and sentence having *380been passed, the defendant was allowed this writ. The errors assigned were inter alia:

1. The answer to the defendant’s point.1

2. The charge of the court as stated.8

5. The refusal to permit' the defendant to be heard by counsel.3

*Mr. Lev. McQuistion*(with him *Mr. W. A.*Forquer), for the plaintiff in error:

Britton v. Commonwealth, 105 Pa. 311, settles the right of a distiller who has paid his tax to sell his liquors, manufactured by him, in quantities not less than one gallon,-at any one place in the county other than at his distillery. • Under the facts and law of this case, the sale was not made in Cherry township, when and where the orders and money were given to the defendant, but became perfect and complete when they were accepted by George Stahl and the liquor ordered was by him measured, put into the jugs and set apart for the purchaser : Scott v. Wells, 6 W. & S. 367; Haldeman v. Duncan, 51 Pa. 66; 1 Benj. Sales, 336; Tegler v. Shipman, 33 Ia. 194 (11 Amer. R. 118); McEntire v. Parks, 3 Metc. 207; 2 Pars. Con. 586; Shriver v. Pittsburgh, 66 Pa. 446. There is no law of the commonwealth making it an unlawful offence for any one, principal or agent, tos solicit orders for liquors in wholesale quantities.

*Mr. Chas. A.*McPherrin, *District*Attorney, for the defendant in error:

The liquor was delivered by the defendant to the persons who purchased the same and from whom he received the pay at a point twenty-four miles from Stahl’s place of sale, and the sale was not complete until that delivery: Garbracht v. Commonwealth, 96 Pa. 449; 1 Benj. Sales, 334, 335; Commonwealth v. Greenfield, 121 Mass. 49.

Opinion,

Mr. Justice Williams :

An examination of the record discloses but one reason for interfering with the verdict and sentence in this case. This is brought-to our attention by the fifth assignment of error. It' appears that, at the conclusion of the evidence, the defendant *381asked the court to permit him to be beard by his counsel before tbe jury. Tbis tbe court refused to do, giving as tbe reason tbat “ there is nothing in tbe judgment of tbe court to justify wasting time argumg.” Tbe case was then left to tbe jury under tbe charge of. the court. To tbis action of tbe court an exception was taken at tbe time and a bill duly sealed. Wo have therefore to determine whether tbe defendant’s right to be beard by bis counsel before tbe jury is subject to tbe discretionary power of tbe judge presiding at tbe trial.

Tbe right to be so heard, is expressly provided for in tbe constitution of tbe commonwealth. Tbe “declaration of rights” asserts in tbe plainest terms tbat “In all criminal prosecutions tbe accused bath tbe right to be heard by himself and bis counsel.” Tbe constitution is tbe law paramount which binds all departments of tbe government.

Tbe legislatiue cannot take away what tbe constitution guarantees, nor can the courts. On tbe contrary, it is the duty of tbe judges to obey the constitution and to enforce observance of its provisions on others. Courts may regulate tbe manner and time for the exercise of tbe right to be beard by counsel, and may limit the number and tbe length of tbe addresses to be made to the jury by general rule or by an order made in the particular case. These subjects are within the exercise of judicial discretion, and merely regulate the exercise of tbe constitutional right.

To deny tbe right altogether is beyond the power of tbe courts. In Cathcart v. Commonwealth, 37 Pa. 108, a similar question was raised, and, in tbe opinion of tbe court, Justice Strong said: “ Tbe right to be beard by himself and his counsel is doubtless a constitutional right, and if it bad been denied it would have been error.” In tbe present case tbe right was denied. Tbe fact tbat it was demanded by the accused and tbat the court refused to allow its exercise appear clearly upon tbe record, and we have no alternative.

For tbis error a cause, which seems to have been fairly tried in other respects, must go back for re-trial.

Judgment reversed and venire facias de novo awarded.