I. Elmer Ecker, E. P. Curran, Pittsburgh, for appellant.
William S. Rahauser, Dist. Atty., Samuel Strauss, Asst. Dist. Atty., Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 169 Pa. Super. Page 608]
Defendant Anthony Grosso was charged with conducting a 'numbers' lottery. He was convicted by a jury and was sentenced. We need refer to but three of the questions raised by him, as appellant, in seeking a new trial; we find no merit in any of them.
Appellant was the owner of a dwelling house on Morrison Drive in Mount Lebanon. The Borough police had the premises under close surveillance for four or five days prior to a raid conducted by them at about 4 p. m. on July 10, 1950. At the time of the raid this appellant came from the second floor of the house and admitted the police officers when informed that they had a warrant for a search of the premises. In the basement of the house the officers found a large quantity of material and paraphernalia which stamped the premises as the headquarters of a numbers lottery conducted on a large scale. Four of the seven persons found in a game room in the basement were operating electric adding machines tabulating the amounts collected on the numbers slips for the day of the raid. Boxes of similar slips were also found for each of the preceding ten days. The intake in money as evidenced by the numbers slips for the ten-day period amounted to a total of $116,448. A code book was found in the basement, indicating that at least 40 numbers writers were employed in the operation of the lottery. Blank numbers books were found in the basement and also in automobiles parked on the premises. For a number of days prior to the raid various persons were observed carrying shopping bags and suspicious bundles into the house, especially in mid-afternoon, during the hour of greatest activity.
Appellant at the trial attempted to shift the responsibility for the conduct of the lottery to his brother Sam Grosso who was also under indictment on the same
[ 169 Pa. Super. Page 609]
charge. Appellant testified that he went to Florida on June 23, 1950, and did not return to his home in Mount Lebanon until the day of the raid. He said that before leaving for Florida he delivered his house keys to his brother Sam for protection of the property, and that during his absence the lottery was set up in his home by his brother without his knowledge or consent. The charges against the two brothers were consolidated for trial but because of the illness of Sam Grosso the court granted a continuance as to him. In the course of the trial of the appellant his counsel offered to prove that Sam Grosso, if called as a witness, would exonerate the appellant and would accept full responsibility for the conduct of the lottery. Since Sam Grosso was ill and did not appear, the assistant district attorney offered to take his deposition at his home but appellant's counsel stated that Sam's wife would not permit him to be interrogated. On that ground defendant's counsel moved for a continuance of the trial of the appellant, which the court properly refused.
The defense interposed by appellant was tenuous, even without acceptance of credible evidence that appellant was in his home continuously for at least four days preceding the raid. The trial of the case had been continued twice on defendant's application and the second continuance was granted on his counsel's representation that no further delay would be requested. An application for a continuance is addressed to the sound discretion of the court. And in determining whether a continuance should be granted the nature of the crime and the circumstances attending it are to be considered. Where the ground advanced for a continuance is the absence of a witness whose testimony if produced would be cumulative merely the refusal of a continuance is proper. Commonwealth v. Deni, 317 Pa. 289, 176 A. 919; Commonwealth v. Schurtz, 337 Pa. 405, 10 A.2d 378; Commonwealth v. Roberts, 163 Pa. Super. 43,
[ 169 Pa. Super. Page 61060]
A.2d 397. Under the circumstances the lower court was justified in questioning appellant's good faith in seeking a further continuance, and in concluding that Sam Grosso had no intention of accepting responsibility for the numbers lottery conducted in appellant's house. It may be noted in passing that the opinion of the court on the rule for a new trial in this case, states that when Sam later was brought to trial he was convicted not by any admission of guilt but by a jury ...