Joseph P. Willson, Smethport, Otis Erisman, Morton Kline, Frank F. Truscott, Philadelphia, Charles E. Kenworthey, Pittsburgh, for appellant.
C. W. Shattuck, Dist. Atty., Robert B. Apple, Deputy Dist. Atty., Smethport, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 28]
On Sunday, June 11, 1950, between 2 and 9 p. m., a sporting goods store in Kane was entered and five firearms and ammunition were taken from its shelves. Appellant was indicted for (1) burglary, (2) larceny, and (3) receiving stolen property. The second count was quashed; he was acquitted on the third count; and was convicted and sentenced on the first count.
The evidence upon which the Commonwealth relied, part of which was contributed by defendant's testimony, established that on that Sunday appellant and one Joseph O'Keefe were returning by automobile from St. Louis to their homes in Boston. The automobile had previously been owned by appellant who transferred
[ 169 Pa. Super. Page 29]
its title to O'Keefe shortly before they left Boston. O'Keefe drove the car, appellant having forfeited his driver's license; and appellant and O'Keefe were together throughout the journey, except as hereafter stated. They left Cleveland, Ohio, at about 12.30 p. m., entered Pennsylvania, and travelled on U. S. Route No. 6 to Towanda, Bradford County, where they arrived at about midnight and spent the night, registering at a hotel under fictitious names. Route 6 passes through Kane, McKean County, and Coudersport, Potter County. Appellant testified he did not know the names of the towns through which they passed, although he remembered that at some point they purchased gas at a filling station. During the following morning, while on the highway between Towanda and the New York State line, they were stopped by state police and the Towanda chief of police. They were taken back to Towanda where the automobile and their baggage were searched.
Four suitcases were found in the car; one, Exhibit 6, was standing on the floor of the car back of the driver's seat; and three were in the trunk compartment. Exhibit 6 was opened with a key found in another suitcase, Exhibit 8. Exhibit 6 contained the firearms identified by name, make and serial number as those taken from the Kane store, a quantity of ammunition, 11 pairs of new gloves, and 3 new suits of clothing, bearing price tags and other labels with which suits are displayed for sale. Exhibit 8 contained, inter alia, 3 new suits of clothing and, most significantly, a coat which matched a pair of trousers which was found in Exhibit 15, a suitcase which was admittedly appellant's. The suitcases, Exhibits 6 and 8, the new suits of clothing, and the gloves were identified by a Coudersport merchant as articles which he discovered missing from his store when he opened it for business on Monday morning. In the car were found various
[ 169 Pa. Super. Page 30]
other articles and among them a pair of tweeze pliers, a punch, a screw driver, copper wire, a claw hammer, and a tool described as a 'small little jimmy bar.' On appellant's person a nail file was discovered.
The evidence connecting appellant with the Kane burglary was circumstantial. No one saw him or O'Keefe enter the store or, for that matter, saw them in Kane. There were no marks or signs on the doors or windows of the store showing a forcible entry. No one saw them enter the Coudersport store, but an attendant at a gas station near Coudersport identified appellant, and testified that he, accompanied by another person, stopped at the gas station and that one of them purchased gas on Sunday evening at about 8.30 p. m. The Coudersport merchant discovered that the front door of his store could be opened with a nail file inserted between the spring lock and the casing. And yet the firearms taken from the Kane store were found in a suitcase standing on ...