Commonwealth v. Kelson

• Decision Date: 31 January 1939
• Docket Number: 162-1939,161-1939,160-1939,163-1939
• Parties: Commonwealth v. Kelson, Appellant
• Court: Pennsylvania Superior Court

3 A.2d 933

134 Pa.Super. 132

Commonwealth v. Kelson, Appellant

Nos. 160-1939, 161-1939, 162-1939, 163-1939

Superior Court of Pennsylvania

January 31, 1939

Argued December 12, 1938.

Appeals from judgments and sentences of Q. S. Allegheny Co Feb. Sessions, 1937, Nos. 48 and 49, and Sept. Sessions 1937, Nos. 846 and 847, in case of Commonwealth v. Morris J Kelson.

Indictments for conspiracy to maliciously destroy property by explosives, to carry noxious substances with intent to use same unlawfully against property. Before Culver, P. J., specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty and judgment and sentence thereon. Defendant appealed.

Error assigned, among others, was refusal of new trial.

Judgments to appeals Nos. 160 and 161 affirmed, and judgements to appeals Nos. 162 and 163, reversed.

Nathan H. Leventon, with him Maurice Louik, for appellant.

Earl R. Jackson, Assistant District Attorney, with him Andrew T. Park, District Attorney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.

OPINION

Rhodes, J.

Appellant, Morris J. Kelson, and his codefendant, A. J. Balter, were convicted on four bills of indictment charging conspiracy. Appellant was sentenced to not less than one or more than two years on each bill, each sentence to run consecutively and to begin and take effect at the expiration of the previous sentence. Appellant's motion for a new trial having been refused, these appeals were taken. Balter, who was paroled after sentence, did not appeal.

Three questions have been raised for our consideration: (1) Was the evidence sufficient to sustain the convictions of appellant? (2) Was reversible error committed by the trial judge in refusing appellant's motion to withdraw a juror, because of the remarks by the assistant district attorney in his address to the jury? (3) Were the sentences imposed on appellant in conformity with law?

One indictment (No. 48, February Sessions, 1937) upon which appellant and Balter were convicted charged that they "unlawfully did then and there falsely and maliciously, combine, confederate, conspire and agree together and with another person and other persons whose name and names are to this inquest unknown, to commit an unlawful act prohibited by law, that is to say, to unlawfully, wantonly, wilfully and maliciously destroy, damage and injure a certain building and other property contained in said building there situate in the County of Allegheny, of and belonging to Arthur Resnick, trading and doing business under the fictitious name, style and title of Peter Pan Cleaners, by the explosion of gunpowder, dynamite, nitroglycerine and other explosive substance to be placed and thrown in, into, upon, under, against and near said building and other property contained in said building as aforesaid."

Another indictment (No. 49, February Sessions, 1937) in the same language charged the said defendants with conspiring to maliciously destroy by explosives the building and property "belonging to Brent Stores, Incorporated."

The third indictment (No. 846, September Sessions, 1937) charged that appellant and Balter "unlawfully, did falsely and maliciously combine, confederate, conspire and agree together and with another person and other persons whose name and names are to this inquest unknown to unlawfully and feloniously possess and carry noxious liquid gas and substance with intent to use the same unlawfully against the property of Arthur Resnick and David Resnick, doing business under the firm name, style and title of Peter Pan Cleaners."

The fourth indictment (No. 847, September Sessions, 1937) was the same as the third with the exception that the owners of the property therein mentioned were "J. H. Marcus, M. A. Marcus and Daniel Marcus, partners, doing business under the firm name, style and designation of Brent Cleaners."

It is contended on behalf of appellant "that the Commonwealth may have introduced sufficient evidence to convict the appellant with the commission of a specific criminal act, but failed to introduce sufficient evidence to establish a conspiracy." "It has often been held that a conspiracy is an agreement to do an unlawful thing, or to do a lawful thing in an unlawful manner. The offense is complete the moment the agreement is made, whether acts be done in pursuance of it or not: Heine v. Com., 91 Pa. 145; Com. v. Stovas, 45 Pa.Super. 43; Com. v. Haun, 27 Pa.Super. 33": Com. v. Yerkes, 52 Pa.Super. 68, at page 73. The parties to the agreement must be actuated by criminal intent. Com. v. Gormley et al., 77 Pa.Super. 298. But it is proper for the Commonwealth to establish the conspiracy by proof of subsequent acts and circumstances (Ballantine v. Cummings, 220 Pa. 621, 631, 70 A. 546; Rosenblum v. Rosenblum et al., 320 Pa. 103, 105, 181 A. 583), which must be sufficient to warrant an inference that the corrupt confederation had been in point of fact formed for the purpose charged (Com. v. McGurk et al., 105 Pa.Super. 383, 388, 161 A. 473).

Rarely, in a conspiracy case, is the Commonwealth able to prove an express confederation, and in Com. v. Tilly, 33 Pa.Super. 35, we held that such proof was not necessary. In Com. v. McGurk et al., supra, p. 388, we reiterated this statement. Overt acts would be evidence from which a conspiracy could be inferred. Com. v. Sanderson, 40 Pa.Super. 416, 473; Com. v. Bartilson et al., 85 Pa. 482. See, also, Hester et al. v. Com., 85 Pa. 139, 156; Com. v. Strantz, 328 Pa. 33, 44, 195 A. 75. In the recent case of Com. v. Strantz, supra, at page 43, our Supreme Court, in an opinion by Mr. Justice Maxey, said: "The heart of every conspiracy is a common understanding, no matter how it comes into being. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. In Com. v. Jermyn, 101 Pa.Super. 455, 465, the Superior Court, speaking through Judge Gawthrop, aptly said: 'The joint assent of minds required to sustain a charge of conspiracy may be inferred from facts which establish . . . . that the conspiracy had been formed.'"

In the instant case the Commonwealth was obliged to rely upon circumstantial evidence to establish the conspiracies alleged in the indictments. Hence, as said in Com. v. Pasco, 332 Pa. 439, at page 443, 2 A.2d 736, at page 738, in an opinion by Mr. Justice Barnes: "It is fundamental that when a charge of crime is sought to be sustained by circumstantial evidence, the facts and circumstances must not only be consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence." See Com. v. Benz, 318 Pa. 465, 472, 178 A. 390; Com. v. Bardolph et al., 326 Pa. 513, 521, 192 A. 916; Com. v. Bone, 64 Pa.Super. 44; Com. v. Goldberg et al., 130 Pa.Super. 252, 196 A. 538.

Appellant and his codefendant Balter were interested in organizing the independent retail tailors and drycleaners in Pittsburgh and vicinity. Balter was an officer of the organization, and appellant was business manager and organizer. The objective was to have all those operating as retail tailors and drycleaners charge the same prices; the dues of each member would be $ 2 per month. In the fall of 1936 appellant and Balter called upon officers of Brent Cleaners, or Brent Stores, and the owners of Peter Pan Cleaners after Balter had arranged for the interviews. Appellant, who did the talking, sought to have these concerns join his organization in order that prices in the cleaning business might be stabilized in the city of Pittsburgh, and asked that they raise their minimum price of 39 cents per garment to 59 cents. Commonwealth witnesses testified that in reply they stated to appellant that uniform prices could not be maintained because all drycleaners did not do the same character of work, and that all were not equally competent; that previous attempts had been made to raise prices, but that it had been impossible to maintain them; that fixed prices could not be maintained and enforced in their business in that district. It was testified that appellant replied that prices could be raised, fixed, and maintained; that it had been done at other places such as Detroit, Toledo, and Cleveland; that it could be done in Pittsburgh and vicinity. The representatives and owners of the concerns interviewed said to appellant and Balter that they were aware of the method used in the other cities to fix and maintain prices; that the methods used in those places consisted of violence, destruction of property, and bombing of business places; that they would have nothing to do with such methods. Appellant said that he had methods of his own to enforce price fixing; and when they repeated the above methods as being the methods used, he made no denial that they were the methods which he proposed to use.

The concerns contacted refused to negotiate with appellant. He advised their representatives that they would hear from him again, and that a meeting would be called to which they would be invited. They were later invited or notified by letter to attend a meeting at the Hotel Henry, Pittsburgh, which they did not attend. They were subsequently notified that January 1, 1937, was fixed as the deadline for them to accede to appellant's demands. Not having complied within the time limitation, various stores of the concerns contacted by appellant and Balter were stench bombed, and much of their property destroyed. Two stores of Brent Cleaners were bombed with stench bombs on January 11, 1937. This was followed by the bombing of other stores in February. Appellant was then...