Commonwealth v. Kaufman

• Decision Date: 08 August 1955
• Citation: 179 Pa.Super. 247,116 A.2d 316
• Parties: COMMONWEALTH of Pennsylvania v. Ben KAUFMAN, Appellant.
• Court: Pennsylvania Superior Court

116 A.2d 316

179 Pa.Super. 247

COMMONWEALTH of Pennsylvania v. Ben KAUFMAN, Appellant.

Superior Court of Pennsylvania.

August 8, 1955

Application for Allocatur Denied Sept. 29, 1955.

Petition for Reconsideration Denied Oct. 31, 1955.

Defendant was convicted of conspiracy to commit larceny and of receiving stolen goods. From orders of the Court of Quarter Sessions of Erie County at No. 15 September Sessions 1953, and No. 354 May Sessions, 1953, Elmer L. Evens, P.J denying defendant's motions for a new trial and in arrest of judgment he appealed. The Superior Court, Nos. 248, 249 April Term, 1954, Hirt, J., held that a charge to jury that if defendant's codefendants in conspiracy case stole some bags of plastic molding powder and delivered them into defendant's possession, there was a duty on him to show that his possession was lawful, was not erroneous as amounting to adverse comment on defendant's failure to testify.

Judgments imposing sentences on convictions affirmed.

In prosecution for conspiracy to commit larceny and receiving stolen goods, police officer's testimony that when defendant was confronted with incriminating statements by his alleged accomplices, he said that he had nothing to say until he had seen his lawyer, and another police officer's testimony that defendant said he could not tell officers anything until he talked with his attorney, was admissible as constituting part of first officer's whole interview with defendant and second officer's conversation with him.

John M. Wolford, Erie, for appellant.

Herbert J. Johnson, Jr., Asst. Dist. Atty., Damian McLaughlin, Dist. Atty., Erie, for appellee.

Before RHODES, P. J., and HIRT, ROSS, WRIGHT, WOODSIDE and ERVIN, JJ.

HIRT Judge.

Defendant was convicted with two others on the charge of conspiracy to commit larceny. The accomplices had pleaded guilty to the charge. On a second indictment defendant was found guilty of receiving stolen goods. He was sentenced on both convictions. These are appeals from the refusal of his motions for a new trial and in arrest of judgment.

By the verdicts these facts, on undisputed testimony, must be taken as established. Defendant is a junk dealer. Louis Marx Company, a manufacturer of toys, maintains a large storage warehouse in Erie. Both Rudolph Colonna and Joseph Orsini, Kaufman's codefendants in the conspiracy case, were employed there. They clandestinely removed 110 bags of new plastic molding powder from their employer's stock and concealed it on the premises. The bags weighed 50 pounds each. By arrangement with the defendant they later delivered all of this material to a garage designated by him. They were to be paid for the material by the defendant and they understood that they were to receive about $400 for the lot, worth in all more than $2,000. The defendant when arrested gave one of the officers a key to the garage where the material had been delivered to him by Colonna and Orsini. The evidence clearly established that the material was stolen from the Marx Company and that it was received by the defendant with knowledge that it was recently stolen property. On this phase of the trial of the defendant for receiving stolen goods, the court charged the jury that ‘ if you believe Colonna and Orsini that they stole these 110 bags or any portion of them from the Marx Company, and if you believe that they delivered them into the possession of Ben Kaufman, and if you believe they were put there and came into his possession, then there is a duty upon the defendant to come forth and show that the possession was in a legal manner and not in the nature of a criminal manner, because there is a theory or rule of law that a person in possession of recently stolen property must explain that possession. If it is once shown that the property that was stolen was in his possession then he must give a reasonable explanation as to how it came into his possession to exculpate himself. That is not incumbent upon him until you decide two elements, first, whether it was stolen, and second, whether he actually got possession. You must be satisfied beyond a reasonable doubt that the goods were actually stolen, must believe beyond a reasonable doubt that the goods came into the possession of Ben Kaufman, and if satisfied of that then you can consider the absence of explanation as to why he got them and any manner by which he might exculpate himself from responsibility.’ And in response to defendant's objection to the above charge ‘ as to the burden of proof’ the court further instructed the jury in this language: ‘ Members of the jury, we have told you that the burden of proof is upon the Commonwealth to prove all the elements beyond a reasonable doubt and that responsibility stays with them. The explanation as to recently acquired stolen property being on the defendant does not change the overall burden of proof but is to be considered in connection with that burden of proof.’ Defendant excepted specifically to the above portions of the charge.

The defendant did not take the stand nor did he offer any evidence as to how he came by the material. We nevertheless are unable to agree that there is error in the charge of the court as to the ‘ duty upon the defendant to come forth and show’ that his possession was lawful.

In Commonwealth v. Newman, 276 Pa. 534, 539, 120 A 474, 476, the trial court in charging the jury said: " Where property has been stolen and is speedily found in the possession of some one, the law puts upon him the burden of its explanation. Otherwise, he is deemed to have been the thief. * * * whenever one is found in the possession of property which has recently been stolen, there rests upon him the burden of explanation. Otherwise he is presumed by the law to have stolen the property. * * *" (Emphasis added.) Although this language on appeal was not approved, (and it was much more open to criticism than the language of the charge in the instant case) the instructions were held not to be reversible error under the circumstances. The ‘ guiding rule’ was thus stated in the Newman case: ‘ The possession of recently stolen property by a person is evidence from which it can be found he is the thief, but the presumption is one of fact, not of law, and the jurors must pass on it as part of the evidence against the accused.’ We, with some variation in language have applied the rule. E. g., in Commonwealth v. Lindie, 147 Pa.Super. 335, 339, 24 A.2d 39, 41, we said: ‘ It is well settled that where a person is found in possession of recently stolen property, the burden of accounting for such possession rests upon him, and there is a presumption of guilt which will justify conviction if he does not meet it by a reasonable explanation, and it is a question for the jury to decide whether or not the defendant meets such burden.’ Cf. Commonwealth v. Dock, 146 Pa.Super. 16, 21 A.2d 429; Commonwealth v. Pollack, 174 Pa.Super. 621, 101 A.2d 140. Evidence of the possession of things in itself may be evidence against the possessor charged with crime. Commonwealth v. Fusci, 153 Pa.Super. 617, 35 A.2d 93. Possession of goods recently stolen in the perpetration of a robbery or burglary is evidence of...