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COMMONWEALTH v. O'HARA (11/14/50)

November 14, 1950

COMMONWEALTH
v.
O'HARA



COUNSEL

Martin J. Vigderman, Freedman, Landy & Lorry, 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, Arnold and Gunther, JJ.

Author: Reno

[ 167 Pa. Super. Page 498]

RENO, Judge.

O'Hara, White and Blum were jointly indicted and tried for (1) burglary, (2) larceny, and (3) receiving stolen goods. O'Hara and White were convicted on the first and second counts; Blum on the third; and they were sentenced accordingly. Only O'Hara appealed.

Undoubtedly some persons burglarized the Uncle Sam Hotel in Philadelphia some time after midnight of Saturday, May 14, 1950. The thieves broke into the men's room by breaking a window located about eight feet above the ground which was reached by placing a plank in a sloping position against the wall. An iron grate which protected the window was broken and removed. Having entered the men's room in that manner, the burglars gained access to the bar room, and from the shelves took a number of bottles of whiskey, wine and brandy, and a quantity of beer, too much for one man to carry away at one time.

A door leading from the tap room to the up-stairs sleeping rooms stood open when the proprietor reached his premises the following day. He called the police and together they searched the sleeping rooms. The defendants

[ 167 Pa. Super. Page 499]

    were lodgers in the hotel, and they were found in Blum's room, drinking the liquors missing from the bar room. A police officer testified: 'White had a lot of brick dirt in his hair, where it came out of the grating; O'Hara's hands were full of rust, where they held the [grate] bar.' A city detective testified that at the magistrate's hearing 'Blum stated that O'Hara and White brought the whiskey to his room.' The Commonwealth's evidence, if believed, was sufficient to support the convictions.

The defendants testified in their own behalf. White and OHara were represented by counsel who conducted the direct examination of their clients. Blum refused the services of counsel, and was examined by the trial judge. All denied the charges. O'Hara testified that he had spent the night at a club and when he returned to the hotel someone invited him to Blum's room for a drink, and that the police arrived at about that time. He denied that there was rust on his hands, ascribing their condition to a paint job he had performed for the proprietor 'a couple of days' previously. White denied that there was brick dust in his hair and accounted for the brick dust on his hands by the statement that he also had done some painting for the proprietor. He testified that he had gone to Blum's room to invite Blum to have a drink with him, that he saw no liquor in Blum's room, and that the police arrived soon after he entered Blum's room. Blum testified: 'They [the other defendants] brought it [the liquors] in, I didn't.'

Appellant complains of the failure of the trial judge to instruct the jury that Blum was an accomplice and that his testimony must be closely scrutinized and accepted with caution. Blum testified for himself; he was not called by the prosecution; the Commonwealth did not guarantee his credibility; and it did not rely upon or need his testimony to ...


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