Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 436]
Defendants, Fred G. Schultz and Mike Dominic, have appealed from convictions and sentences on charges of burglary and larceny. Each of the two indictments contained three counts, burglary, larceny, and receiving stolen goods. Defendants were tried jointly, and found guilty by the jury on the first two
[ 168 Pa. Super. Page 437]
counts of each bill. The court sentenced defendants to a term of not less than one and one-half years nor more than three years in the Allegheny County Workhouse on each bill, the sentences to be served concurrently.
The Commonwealth alleged that the defendants committed the offenses on the evening of January 9, 1950, when they entered two establishments in the vicinity of the City of Erie and in each instance stole a Latex vending machine.
The evidence as to defendants' guilt was circumstantial, but we agree with the court below that it was sufficient to warrant the convictions. The demurrers to the Commonwealth's evidence were properly overruled.
The Commonwealth established that the defendant Schultz was in the business of placing Latex vending machines in roadhouses and tap rooms near the City of Erie, and that at the time he was desirous of acquiring more machines for this purpose. About 8:30 on the night of January 9, 1950, Schultz and Dominic, who was employed by Schultz, entered a tavern and restaurant located twelve miles east of Erie, known as Chick Inn. After they had been at the bar about three quarters of an hour, Dominic entered the men's room. Five minutes later Dominic opened the door a few inches and asked Schultz, who was standing nearby, if he was ready to go. When Schultz replied in the affirmative, Dominic, having an overcoat, walked out of the men's room to the outside door of the tavern which was only a few feet away, and which was held open by Schultz. Because of the conduct of the defendants an employe of the Inn entered the room immediately and found that the Latex vending machine had been taken from the wall. The machine had been intact when Dominic entered, and he was in the washroom alone.
[ 168 Pa. Super. Page 438]
No one had entered from the time that Dominic had left until it was found that the machine was missing.
Later the same evening, about ten minutes to twelve, both defendants entered the Red Lantern Tavern located about five miles west of Erie. Schultz entered the men's room and returned shortly. After ordering drinks Dominic complained of being ill and sought this room where he remained for several minutes. When he came out Dominic still complained that he was ill and accepted the manager's suggestion that he step outside in the fresh air. Meanwhile Schultz was playing a shuffle board on the premises. After Dominic returned he and Schultz remained in the tavern three or four minutes and then left together. The manager immediately entered the washroom to see if it was clean, and discovered that the vending machine had been removed from its base on the wall. The vending machine had been in place when the manager inspected the washroom about two minutes before defendants entered that room. There was a sliding window and screen in the washroom which could be opened from the inside.
Thirteen photographs were shown various witnesses by the state police. The manager of the Red Lantern identified both defendants from these photographs, and the owner and an employe of the Chick Inn identified Schultz from the same photographs. Subsequently the latter two identified Dominic in a police lineup of seven persons. Another witness testified that he saw both defendants at the Chick Inn, and two witnesses testified that Dominic was in the men's room at the Red Lantern Tavern and 'made quite an issue' of the fact that he did not feel well. When taken into custody by the ...