Commonwealth v. Calderbank.

• Citation: 161 Pa.Super. 492,55 A.2d 422
• Parties: COMMONWEALTH v. CALDERBANK.
• Decision Date: 14 November 1947
• Court: Pennsylvania Superior Court

161 Pa.Super. 492
55 A.2d 422

COMMONWEALTH
v.
CALDERBANK.

Superior Court of Pennsylvania.

Nov. 14, 1947.

55 A.2d 423

COPYRIGHT MATERIAL OMITTED.

Appeal No. 212, October term, 1947, from the judgment of sentence of the Court of Oyer and Terminer for the County of Montgomery as of No. 89, February term, 1947; William F. Dannehower, Judge.

Frank J. Calderbank was convicted of statutory burglary and larceny, and he appeals.

Affirmed.

Thomas D. McBride, of Philadelphia, Edward B. Duffy, of Hatboro, and James Herbert Egan, of Norristown, for appellant.

Frederick B. Smillie, Dist. Atty., of Norristown, and Henry Stuckert Miller, of Jenkintown, for appellee.

Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS, ARNOLD, and FINE, JJ.

HIRT, Judge.

In the early morning of March 10, 1947, two men broke into the Philmont Country Club in Montgomery County and stole a quantity of bottled whiskey and other liquors worth about $1,200. Of the two, this defendant alone was identified. He was convicted of statutory burglary and larceny. In this appeal from the sentence imposed, defendant seeks a new trial because of alleged error in the admission of statements made by an employee of the club on the morning of the crimes, identifying him as one of the offenders. Defendant also contends that there is reversible error in the refusal of the trial judge to withdraw a juror following prejudicial testimony of a police officer implying that defendant had been arrested on prior occasions.

The witness Karl Schreiber, on whose testimony defendant's conviction must rest, had been a night watchman in the employ of the club continuously for thirteen years, and he was on duty throughout the night of March 10,1947. The defendant had worked as a bartender in the club for about three weeks in the spring of 1945 and knew where liquor was stored in the basement of the club house. During that period Schreiber saw this defendant every day and shared quarters with him in the ‘help's house’ on the premises. Schreiber testified in substance: That at about 4 a. m., on the above date, he was building a coal fire in the kitchen stove of the club when he heard a noise on a porch, enclosed by latticework, outside the kitchen door. When he went out to investigate he was seized by a man who ‘shouldered’ him to a coal bin at one end of the porch. A second man then entered the enclosure through a small door in the latticework near the coal bin. The men were not masked. There was a 125 watt electric light on the porch near the coal bin and another just inside the kitchen door. The lights were both controlled by the same switch which Schreiber had turned on. He testified that the man who seized him said: ‘No one is going to get hurt’ and that he then recognized him both by his voice and ‘by eyesight’, as the defendant. The defendant then went down the stairway at the other end of the kitchen porch to the basement and called to the second man to bring Schreiber down. The defendant broke the lock off the liquor closet near the foot of the stairs in the basement and selected bottles of liquor which he placed in the hallway. Schreiber was placed in a room immediately...