Commonwealth v. Kauffman
| Decision Date | 15 July 1944 |
| Citation | 38 A.2d 425,155 Pa.Super. 347 |
| Parties | Commonwealth v. Kauffman, Appellant |
| Court | Pennsylvania Superior Court |
Argued April 17, 1944.
Appeal, No. 88, Oct. T., 1944, from judgment of O. & T Northampton Co., Dec. T., 1943, Nos. 70, 71 and 72, incase of Commonwealth v. Lawrence Kauffman.
Indictment charging defendant with burglary and larceny. Before Laub, P J.
Election by Commonwealth to proceed on count charging larceny. Verdict of guilty and judgment and sentence thereon. Defendant appealed.
Irving W. Coleman, for appellant.
Lewis R. Long, Assistant District Attorney, with him Stanley J. Fehr, District Attorney, for appellee.
OPINION
Appellant was charged with burglary and larceny in two counts of a single bill of indictment, but at the trial the district attorney was required to make an election, and he chose to proceed on the larceny count only. This appeal is from the judgment and sentence on a verdict of guilty and the twenty-three assignments of error raise several questions, the most important of which is whether there is sufficient evidence to support the conviction. As the jury found against defendant, the testimony, and the reasonable inferences to be drawn from it, will be viewed in the light most favorable to the Commonwealth: Com. v. Mezick, 147 Pa.Super. 410, 24 A.2d 762.
The Young Men's Independent Democratic Club of Easton was broken into during the early morning of January 14, 1944, between the hours of 3:15 a. m., when the club was closed, and 8:15 a. m., when the police arrived to find the interior of the premises in great disarrangement. It was discovered that the coin drawers of a cigarette machine, cash registers, and an automatic music machine had been rifled and the money taken therefrom, and that a watch, a quantity of liquor and liquor cartons, six slot machines, and the keys to them had been removed from the clubroom.
On January 28, 1944, the authorities entered a garage on Russell Street in Allentown and found a bag of burglar's tools, six slot machines, a set of keys, and two cartons of liquor, all of which were admitted in evidence. The steward of the club identified the keys and the slot machines as those which had been on the club's premises by reason of his having retained duplicate keys which corresponded to those found in the garage and which fitted the machines produced at the trial. The club had used its empty liquor cartons for the storage of garbage and the steward was able to identify the cartons found in the garage as those taken from the clubroom because he recognized stains on them apparently made by a type of tomato pie served at the club. This witness could not state positively that the liquor recovered by the officers had ever been on the club's premises, as the bottles had no distinguishing marks, but he testified that similar bottles of liquor had disappeared the night of the larceny. The steward stated that defendant had been a visitor at the club many times and that on January 9, 1944, he had admired the watch stolen five days later.
The Commonwealth's principal witness was one William Snelling who in August, 1943, was endeavoring to perfect an invention designed to prevent untimely explosions in the powder plant at which he was employed as an explosive technician. Snelling's experimentation required the use of electrical devices and while attempting to purchase equipment of this type he was introduced to defendant who sold him a pinball machine containing some of the desired mechanisms. On August 15, 1943, Snelling rented the garage on Russell Street for use as a workshop and a storage place for his electrical instruments. The acquaintance between Snelling and defendant continued, and defendant began to bring pinball and slot machines to Snelling for repairs, the first few machines being brought to Snelling's home. About the end of September, 1943, Snelling told defendant he might store pinball machines in the garage on Russell Street and defendant subsequently stored and had Snelling make repairs to pinball machines brought to that location. As it became inconvenient for both occupants of the garage to use Snelling's key, defendant, about the end of October, 1943, had a duplicate made for himself which he retained continuously thereafter.
Snelling determined to abandon the garage on December 15, 1943, and so advised defendant in a telephone conversation early in that month, but defendant, who still had use for a storage space, requested Snelling to continue making rental payments and promised to reimburse him. Snelling moved all his effects out of the garage prior to December 15, 1943, told defendant he had done so, and was again assured that he would be reimbursed for the future rental payments he was to make under the agreement with defendant. Although Snelling retained a key to the garage, and continued to pay the rent, he did not again enter the building until January 19, 1944, when he found the stolen property. No witness saw defendant place the property in the garage, and he was not observed at that place after December 15, 1943, when Snelling relinquished his own possession of the building. The only other key to the premises was in the possession of Mrs. Boehm, the landlady, but she did not enter the garage after August 15, 1943.
Defendant denied all complicity in the crime, stating that he never had a key to the garage and that he had not visited the place after September, 1943. He relied upon an alibi to establish his whereabouts from the time the crime was committed until he was arrested on the evening of January 14, 1944, and it is admitted that he was in the custody of the police continuously thereafter until the time of the trial.
The Commonwealth relied upon the principle that possession of recently stolen goods is sufficient to support an inference that the possessor is the thief: Com. v. Dock, 146 Pa.Super. 16, 21 A.2d 429; Com. v. Lowry 153 Pa.Super. 639, 34 A.2d 814. Appellant concedes the principle, but contends that possession must be personal and exclusive before the inference can arise, and that the evidence did not establish such possession. Undoubtedly, the fact of possession loses all persuasiveness if persons other than the accused had equal access with him to the place in which the property was discovered: 9 Wigmore on Evidence (3rd ed.) § 2513. Cf. Com. v. Ault, 10 Pa.Super. 651. Appellant argues from this that his guilt should not be inferred from the finding of the stolen property in the Russell Street garage and cites State v. Zoff, 196 Minn. 382, 265 N.W. 34, and State v. Boudreau, 111 Vt. 351, 16 A.2d 262, cases in which the prosecution did not eliminate the possibility that other persons entered the place in which the goods were found. The difference between those decisions and the present case is manifest, as here the Commonwealth showed that neither Snelling nor Mrs. Boehm had been in the garage at the time the goods must have been placed there, and that the only other person having access to the premises was defendant or someone acting in concert with him. There was sufficient evidence from which the jury could draw the reasonable inference that appellant exercised dominion over the garage to...
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