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COMMONWEALTH v. CANCILLIERI ET AL. APPEAL CANCILLIERI (01/12/50)

January 12, 1950

COMMONWEALTH
v.
CANCILLIERI ET AL. APPEAL OF CANCILLIERI



COUNSEL

S. V. Albo, Pittsburgh, for appellant.

William S. Rahauser, District Attorney, Leonard H. Levenson, Assistant District Attorney, Pittsburgh, for appellee.

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

Author: Dithrich

[ 166 Pa. Super. Page 2]

DITHRICH, Judge.

John Cancillieri, the appellant, was convicted of having in his possession gambling devices with the intent or for the purpose of operating them as such. He admittedly had in his possession 170 slot machines, stored in a barn on a farm property -- title to which was in his wife's name -- in Indiana Township, Allegheny County.

Appellant lives at 1411 Fulton Street, Pittsburgh. He defended on the ground that when 'they gave us orders to take them out of circulation, we took them out.' He said he was at the time employed as a repairman by the Coin Machine Distributing Company, owner of the machines, and that the company, rather than destroy the machines which admittedly were gambling devices per se, gave them to him. He further testified that although the machines would sell at retail for about $275 each, giving them a total retail value of approximately $46,750, he had been dismantling them and using certain of the parts for lawful purposes, such as Christmas tree platforms and small portable liquor bars made out of the cabinets.

The jury found, under proper instructions from Graff, P. J. specially presiding, that appellant did not intend to dismantle the slot machines but that he was retaining possession of them with the intent of again using them or having some one else use them as gambling devices, the sole purpose for which they were designed, manufactured, and placed in 'circulation.'

He was charged with and convicted of violating § 603 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 4603. The

[ 166 Pa. Super. Page 3]

    section provides in part that: 'Whoever maintains any gambling device or apparatus, to win or gain money or other property of value, or aids, assists or permits others to do the same, * * * is a common gambler, and guilty of a misdemeanor, * * *.'

Appellant contends that this case is ruled squarely by Commonwealth v. Weiss, 142 Pa. Super. 524, 16 A.2d 435. In that case the defendant was charged with and convicted, in a trial without a jury, of violating § 612 of the Act of 1939, 18 P.S. § 4612. He sold to a police detective, for the sum of $2.75, a punch board. This Court held, 142 Pa. Super. at ...


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