Commonwealth v. Palace

• Citation: 164 Pa.Super. 58,63 A.2d 511
• Parties: Commonwealth v. Palace, Appellant
• Decision Date: 14 January 1949
• Court: Superior Court of Pennsylvania

63 A.2d 511

164 Pa.Super. 58

Commonwealth v. Palace, Appellant

Superior Court of Pennsylvania

January 14, 1949

Argued September 27, 1948

Appeal, No. 165, April T., 1948, from judgment of Quarter Sessions, Butler Co., June T., 1947, No. 45, in case of Commonwealth v. Frank Palace.

Indictments charging defendant with establishing a gambling house and traffic in lottery. Before Purvis, P. J.

Verdict of guilty as to establishing a gambling house, and not guilty of traffic in lottery, and judgment of sentence entered upon verdict of guilty. Defendant appealed.

Lee C. McCandless, with him John H. Marshall, for appellant.

Clyde S. Shumaker, District Attorney, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross, Arnold and Fine, JJ.

OPINION

FINE J.

Frank Palace, appellant, was convicted of setting up or establishing a gambling house contrary to § 605 of The Penal Code. ^[1] This appeal challenges the sufficiency of the evidence to sustain his conviction and embodies two questions. (1) Did the "Recreation Pool Room" at 138 North Main Street, Butler, Pa., constitute a gambling place? (2) If so, was the appellant connected with the setting up of such gambling place or did he "procure, permit, suffer and allow persons to collect and assemble for the purpose of playing at and staking or betting upon . . . (a) game or device of address or hazard for money or other valuable thing . . ."?

Police of the City of Butler, together with members of the Pennsylvania State Police, on March 7, 1947, conducted a raid in the said "Recreation Pool Room" or "Recreation Billiards." Appellant was not on the premises at the time of the raid. The police, upon entering the pool room, thoroughly searched the premises and found a large quantity of gambling paraphernalia. The "Recreation Pool Room" establishment was described as follows: to the right, upon entering, there was a cigar and candy counter, a cash register, two safes, a telephone with locked dial to prevent outgoing calls, a microphone and shelving in back with cupboard space below; in the rear beyond this entranceway, several pool tables were located; to the left of the entranceway, was a stairway to the basement. The basement was partitioned off into three rooms: the first room was occupied by a shoeshine stand at the foot of the stairs; the middle room contained a number of tables and chairs, a telephone and two Western Union Service ticker machines; the third room contained a small table, a chair and an intercommunicating system connected with the cigar and candy counter on the first floor.

Several of the police officers who participated in the raid testified they found a gray metal box locked in a safe on the first floor which contained a blank oilcloth billfold with $ 102.00 in paper money and $ 14.65 in silver money. In this gray metal box was also found a brown canvas bag containing approximately 300 numbers slips, bearing date March 6, 1947, one day prior to the raid. With the brown canvas bag was a sheet of white paper covered with numbers. Slips with numbers written on them and discarded tabs from tip cards were found in the basement. The tip cards were described as sheets with certain numbers on them, designated as "lucky numbers," and apparently used as information or "dope" sheets by numbers players. Slips with numbers were also found behind the venetian blinds in the front of the pool room and in a pillar of the nearby banister.

The fact that the Commonwealth could not show that the key men necessary for the purpose of operating a gambling house, such as writers, players, pick-up men, tabulators and bankers were on the premises at the time of the raid nor prove that gambling was then being conducted on the premises can be of no great comfort to appellant. There was ample evidence to justify the jury's verdict that "Recreation Pool Room" was a gambling place and that people did congregate there for the purpose of gambling. Unquestionably, a large amount of gambling equipment and used gambling materials were found on the premises. One police officer who had been in the establishment sometime prior to the raid replied affirmatively when asked whether he had seen any gambling at that time. An officer of the State Police testified on cross examination that he had observed writers, pick-up men, and pay-off men go in and out of this establishment: Commonwealth v. Ciccone, 85 Pa.Super. 316. Another police officer who participated in the raid entered the pool room at 11:40 p.m. He testified as follows: "And I answered the phone. Q. What took place when you answered the phone? A. A party called up and wanted to play a number. Q. What took place? A. The phone rang and I answered and the party on the line said to play a number for him and I said 'O.K.' . . . and I asked him what his name was and he told me his name and I wrote it down." See Commonwealth v. Prezioso, 157 Pa.Super. 80, 85, 41 A.2d 350, 352, in which Judge Hirt said, inter alia: "A business establishment may be bound by the response of an unidentified person who answers the telephone on its behalf under presumptions which arise from the transaction of business by telephone. Swing v. Walker, 27 Pa.Super. 366. So also evidence is admissible of a telephone conversation in response to a call for a designated person at his place of business if the one answering claims to be the person called although his voice is not identified. Penna. Trust Co. v. Ghriest, 86 Pa.Super. 71. Similarly what is said by one initiating a call, by...