Commonwealth v. Bausewine.

• Court: Superior Court of Pennsylvania
• Writing for the Court: BALDRIGE, President Judge.
• Citation: 156 Pa.Super. 535,40 A.2d 919
• Decision Date: 25 January 1945
• Parties: COMMONWEALTH v. BAUSEWINE.

156 Pa.Super. 535
40 A.2d 919

COMMONWEALTH
v.
BAUSEWINE.

Superior Court of Pennsylvania.

Jan. 25, 1945.

Appeals Nos. 139, 140, October term, 1941, from judgment of sentence of Court of Quarter Sessions, Montgomery County, as of February Sessions 1944, No. 95 (Appeal No. 139) and No. 95-5 (Appeal No. 140); George C. Corson, Judge.

George Bausewine was convicted of bribery and nonfeasance in office, and he appeals.

Conviction sustained, and record remanded with directions.

40 A.2d 920

Thomas D. McBride, of Philadelphia, and Edward B. Duffy, of Hatboro, for appellant.

Frederick B. Smillie, Dist. Atty., of Norristown, for appellee.

Before KELLER, P. J., and BALDRIGE, RHODES, HIRT, RENO, and JAMES, JJ.

BALDRIGE, President Judge.

On March 29, 1944, information was lodged charging George Bauswine, chief of police of the borough of Norristown, with bribery and nonfeasance in office. The same day notice was served on the district attorney by the defendant waiving a hearing and also of a presentment to the grand jury. In compliance with defendant's request and in pursuance of the Act of June 15, 1939, P.L. 400, 19 P.S. § 241, eight district attorney bills were prepared and submitted to his counsel, who made some suggestions for changes in the wording of the bills, which were adopted. On April 3, 1944, the date of the trial, the defendant filed a formal waiver of indictment. Before the case reached the jury six of the bills had been withdrawn from its consideration. The defendant was convicted of bribery and nonfeasance in office on the remaining two bills, to wit, No. 95 February Term, 1944, and No. 95-5 February Term, 1944, respectively.

We will first give consideration to the appellant's contention that the evidence was insufficient as a matter of law to support his conviction and that the verdict was clearly against the weight of the evidence. This requires a review in some detail of the testimony. The Fraternal Order of Orioles, hereinafter referred to as Orioles, maintained a clubhouse in Norristown in which were operated eight illegal slot machines for at least a period of two years, which included 1943 and a part of 1944. The profits from these machines to the Orioles were shown to have averaged $2,750 a month.

Vincent U. McCafferty, called by the commonwealth, testified that in 1942 a man by the name of Kriebel was the chief steward and that he, assistant steward, drove him to Bausewine's home in 1942. Kriebel having died in January 1943, McCafferty ‘carried out just as he did.’ Every month from January, 1943, up to and including January, 1944, he put $50 in cash in an envelope and delivered it to Bausewine.

There appears in the minutes of the house committee of the Orioles as of February 7, 1944, the following ‘Agreed that as this club is operated in a strictly legitimate

40 A.2d 921

manner, no money to be paid anyone as so-called protection money.’ There was no proof that any money was paid Bausewine during the month of February. McCafferty said that on March 10, 1944, he received a telephone call about 6 o'clock from the defendant asking him how he was and where he had been. He answered: ‘Seven o'clock tonight.’ The defendant replied: ‘Okay.’ Shortly after 7 that evening John Gilinger, chairman of the house committee of the Orioles, in his car drove the witness to Bausewine's home. McCafferty had in his possession the envelope containing $50, which he had previously shown Gilinger. Arriving in front of the Bausewine house, he proceeded up the walk, and as he was on the porch, Bausewine, who had been sitting at the window, opened the door and received the money. McCafferty was asked with whom he had a conversation as a result of which he made this payment to Bausewine. He replied Mr. Morrow, the president of the Orioles. Gilinger corroborated this testimony relating to the visit to the defendant's house and the delivery to him of the envelope containing the money.

The credibility of McCafferty was vigorously attacked. He had originally stated on March 16, 1944, that the final payment of $50 was made to Bausewine on the evening of March 14, 1944, and subscribed to a written statement to that effect in the office of the district attorney, although he did not appear very positive as to the date. Accordingly the information and the bills of indictment originally alleged March 14 as the date of the last payment. It became apparent subsequently to the district attorney that March 14 could not have been the date on which McCafferty made the final payment as beyond question between 5 and 9 p. m. on that day the defendant was continuously in a meeting of the Commercial Club, where there were present many prominent citizens of Norristown. The district attorney again interviewed McCafferty in an effort to learn the correct date of this alleged last payment. McCafferty then acknowledged his error and fixed the date as March 10, 1944, explaining that when he made his first statement he was confused, nervous and excited due to the unusual experience of appearing in the district attorney's office, where there were detectives and police present. He explained that he recalled the correct date after talking to his brother Joseph, to whom he had loaned his car on the date the payment was made. That was the reason given for using the Gilinger car. Joseph McCafferty was called and corroborated his brother's testimony as to borrowing his car on March 10.

Bausewine's defense was that he did not know McCafferty and he denied that he ever received any money from him, although he did not specifically deny the telephone conversation to which we have referred. A further defense was that of an alibi. He introduced testimony that between 3 and 9 p. m. of the evening in question he was several miles away from his home taking a ride with a friend named Lewis; that in the course of this trip they made stops at two different hotels. The proprietors of these hotels, friends of Bausewine, and Lewis were called as witnesses to support his alibi defense.

The defendant claims further that his arrest was the result of a frameup; that Gilinger, chairman of the house committee of the Orioles, was a brother-in-law of Captain Butler of the Norristown police force, against whom he had made formal charges of falsifying his alleged resignation from the state police and accepting a bribe while a member of that organization and that it was he in retaliation who was the instigator of this prosecution.

It is true that some of the commonwealth's testimony was circumstantial. Chief Justice Maxey in an opinion in Commonwealth v. DePetro et al., 350 Pa. 567, 39 A.2d 838, opinion filed November 27, 1944, interestingly discusses the test to be applied in passing upon the probative value of circumstantial evidence. That opinion cited with approval Commonwealth v. Skwortzo, 113 Pa.Super. 345, page 348, 173 A. 480, page 481, where it was stated that if the substance of the testimony is not ‘so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances' then it will support a verdict of guilty.

This question naturally arises: What prompted the extraordinary minute of the house committee? It will not require an inordinately suspicious mind to conclude that there was some basis for its passage. It is a reasonable inference that the Orioles subsequently concluded for reasons that were persuasive, to continue the monthly payments notwithstanding the minute of the house committee. Under the evidence adduced the trial judge would

40 A.2d 922

have committed clear error if he had withdrawn this case from the jury's consideration, as there were controversial questions of fact for their consideration. If they believed, as they apparently did, that these payments were made and were for the purpose alleged, the verdict was warranted. We...