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COMMONWEALTH v. FISHER (01/12/50)

January 12, 1950

COMMONWEALTH
v.
FISHER



COUNSEL

Louis Gordon, Harrisburg, for appellant.

Carl B. Shelley, District Attorney, H. F. Dowling, Assistant Attorney, Harrisburg, for appellee.

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

Author: Rhodes

[ 166 Pa. Super. Page 246]

RHODES, Presiding Judge.

Defendant, Ellis R. Fisher, has appealed from judgment and sentence following his conviction on an indictment charging bookmaking and pool selling. Section 607 of the Act of June 24, 1939, P.L. 872, 18 P.S. ยง 4607. Fisher was jointly indicted with Edward D. Lentz as the result of a raid on the afternoon of March 5, 1948, by a detective and two officers of the Harrisburg Police, on an establishment known as 'Jack's Pool Room,' located at 1543 Walnut Street, in the City of Harrisburg. They waived a trial by jury, and were found guilty by the trial judge. At the conclusion of the Commonwealth's case, defendants demurred and presented no defense. Their motions for new trial and in arrest of judgment were refused. Fisher has appealed.

Appellant questions on this appeal (1) the admissibility of certain papers recovered by the police upon the premises at the time of the raid, and (2) the sufficiency of the Commonwealth's evidence to establish (a) the illegal conduct of bookmaking upon the premises, and (b) the connection of appellant with such illegal enterprise.

At 1543 Walnut Street there was a one-story building, and on the outside of the front window the words 'Jack's Pool Room' were painted. The front door was solid and the window was painted so that it was impossible to see into the building from the outside. In executing the raid on the afternoon of March 5, 1948, a Harrisburg city detective in plain clothes and two policemen in uniform, possessing a search warrant, went to the described premises and rapped on the outside door. Lentz, one of

[ 166 Pa. Super. Page 247]

    the defendants, came to the door but before opening it asked who was there. The detective replied 'Joe,' whereupon Lentz asked 'Joe Beal?' When the detective answered 'Yes,' Lentz opened the door. When Lentz saw the detective and the officer in uniform, the other officer having gone to the rear of the building, he immediately backed through a vestibule and closed and locked a second door through which it was necessary to pass to enter the building proper. While attempting to obstruct the entrance of the officers Lentz gave a warning by tapping on the glass of the second door. The officers broke this door and entered a room where there was a counter or glass show case, with a cash register thereon, containing about eighteen packages of crackers, a half box of cigars, two or three dozen decks of cards, and four or five cases of soft drinks. In the cash register was $641.15 in cash. Beyond an archway there was a second room furnished with a large card table covered with green cloth and surrounded by nine chairs. There was also a smaller table in this room on which were two telephones, one with a number and one without. In the rear was a toilet. There were no billiard or pool tables in the place. The only persons present on the premises when the officers entered were Lentz, who had opened the front door, and appellant who was sitting at a table in the second room. The detective and officer who entered at the front unlocked the rear door and were joined by the other policeman. The rear door was of solid iron and it was barred and bolted. The officers in searching the place found a number of papers in the toilet. At the table at which appellant had been sitting there was a copy of 'Daily Racing Form' dated March 5, 1948, with markings on it (Commonwealth's Exhibit 3). The papers discovered in the toilet when unrolled were found to be a copy of 'William Armstrong Daily Sports' sheet dated March 5, 1948 (Commonwealth's Exhibit 2), two 'run-down'

[ 166 Pa. Super. Page 248]

    sheets bearing pencil notations purporting to show the amounts bet by a number of individuals, designated only by initials, on horses racing that day on several well known tracks, and a third sheet on which was written a column of figures, and opposite each figure the name or initials of some individual (Commonwealth's Exhibit 1). Near the cash register they found an electric light bill, mercantile tax bill, and property tax bill; all of them were addressed to Fisher and Lentz. There was also a Federal Income Tax form addressed to Fisher and Lentz. The part offered in evidence as Commonwealth's Exhibit 6 contained the following: 'E. R. Fisher & E. D. Lentz 1543 Walnut St. Harrisburg, Pa., 46 Form 1065 8813173'. In a waste basket in the second room they found found torn pieces of 'racing forms' and 'run-down' sheets which were admitted in evidence as Commonwealth's Exhibit 5. Commonwealth's Exhibit 4 contained the schedule of races at different tracks. While the officers were on the premises between 2:15 and 2:30 p. m. the telephone rang at least five times; the police officers answered the telephone; the calls related to horse racing or betting on horses.

We are of the opinion that there is no merit in appellant's objections to the admission of Commonwealth's exhibits. They were competent and relevant to the charge of bookmaking; they were the necessary paraphernalia for the conduct of such business; they were admissible under all the circumstances as evidence of appellant's guilt. Appellant especially complains of the admission of Commonwealth's Exhibit 6 which relates to the income tax form. We think this exhibit is some evidence that appellant was interested in the business conducted on the premises, and ...


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