Thomas D. McBride, Michael von Moschzisker, and Jacob Kossman, all of Philadelphia, for appellant.
John F. Kane, Assistant District Attorney, John H. Maurer, District Attorney, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 487]
This is an appeal from judgment of sentence on a conviction of conspiracy to commit burglary. The defendant, Gaines, was indicted with David Dabney and William Fields on several bills of indictment charging criminal conspiracy.*fn1 Dabney and Fields entered pleas of guilty and testified for the Commonwealth. Gaines, after waiving a jury trial, was convicted by the trial judge and sentence imposed. This appeal involves only an indictment charging conspiracy to burglarize the residence of Harry Kanefsky.
Kanefsky testified that his home had been broken into on February 20, 1949 and, among other things, a diamond ring had been stolen. Dabney testified that he, with Fields and one Butts, had committed the burglary. He testified that he gave the diamond ring to the defendant pursuant to a conversation he had had with the defendant before the burglary.
The first question involved in this appeal is whether the evidence was sufficient to sustain a conviction.
The elements of conspiracy to do an unlawful act are a combination of two or more persons, with criminal intent or corrupt motive, to do a criminal or unlawful act, or an act not in itself unlawful, by criminal or unlawful means. Commonwealth v. Kirk, 141 Pa. Super. 123, 14 A.2d 914. The gist of the offense is the unlawful confederation. Commonwealth v. Weldon, 159 Pa. Super. 447, 48 A.2d 98. 'The commonwealth was not required to prove an express agreement. It is very rare that a formal or explicit agreement can be proved in a conspiracy case.' Commonwealth v. Weiner, 148 Pa. Super. 577, 581, 25 A.2d 844, 847. Although no overt act is needed to sustain a charge of conspiracy, Commonwealth v. Weldon, supra, overt acts are evidence from which a conspiracy can be
[ 167 Pa. Super. Page 488]
inferred. Commonwealth v. Kelson, 134 Pa. Super. 132, 3 A.2d 933; Commonwealth v. Rosen, 141 Pa. Super. 272, 14 A.2d 833. '* * * the offense is complete * * * the moment the combination is formed. The overt acts are no part of the crime charged; they are merely the evidence of it; the means by which the Commonwealth is enabled to prove the conspiracy itself. * * * The fact of the combination is almost always inferred by the jury from the acts, the overt acts, of the parties, as direct evidence in the shape of declarations can seldom be shown.' Commonwealth v. McHale, 97 Pa. 397, 405, 39 Am.Rep. 808.
In determining whether the evidence will sustain the conviction, the evidence adduced by the Commonwealth must, of course, be accepted as true. According to it, Dabney was a thief and known as such to the defendant. On two occasions prior to the Kanefsky burglary, the defendant had designated to Dabney two other residences to be burglarized, which was done -- or attempted to be done -- by Dabney and Fields. Immediately prior to the Kanefsky burglary, the defendant stated to Dabney that 'he wanted a diamond ring for his wife' and Dabney further testified: 'I told him I would get him one and wouldn't charge nothing for it' and 'I went to Mr. Gaines' house and gave Mr. Gaines two hundred dollars for Butts, to get him out of jail. Mr. Gaines said, 'Mama wants a diamond ring.' So I told him I would get him one, the first time we got one I would give him one.' Later -- overt acts -- a diamond ring was stolen by Dabney and Fields and delivered to the defendant. When the ring was delivered to the defendant, Dabney said to him, 'Take the stone out and have it mounted in another ring so it won't be recognized', and Gaines said, 'Okay'.
The evidence in this case and the inferences to be drawn therefrom amply sustain the trial ...