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COMMONWEALTH v. MUSSER. COMMONWEALTH V. DARNELL (11/12/52)

November 12, 1952

COMMONWEALTH
v.
MUSSER. COMMONWEALTH V. DARNELL



COUNSEL

James P. Coho, Hamaker & Coho, Lancaster, for appellants.

John W. Beyer, Dist. Atty., Lancaster, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich and Ross, JJ.

Author: Rhodes

[ 172 Pa. Super. Page 46]

RHODES, President Judge.

Gerald Musser was found guilty of robbery, and Charles Wm. Darnell was found guilty of being an accessory before the fact. Both defendants were indicted and tried with John H. Dickel, who was also charged with robbery. As to Dickel demurrer was sustained at the close of the Commonwealth's case. As to Darnell the demurrer was overruled. Defendants offered no evidence. Musser and Darnell have appealed from their convictions and sentences.

During the evening of November 19, 1951, one Willis J. Shertzer, a cook, chauffeur and handyman, met Darnell, whom he had known for about 15 years, at several bars or restaurants in the City of Lancaster, where intoxicating beverages were served. Shertzer, after drinking extensively during the evening, went to the home of a friend, where he spent the night. After Shertzer had retired Darnell appeared and made inquiries about Shertzer. The next morning, November 20, 1951, Shertzer resumed his drinking at the same places which he had frequented the previous evening. Darnell met Shertzer and followed him during the morning, although Shertzer tried to keep away from Darnell. About noon Shertzer went to the bus depot to board a bus to go to the horse races in Maryland. While waiting Shertzer fell asleep and was subsequently awakened by Darnell who told Shertzer that he had two men who would take Shertzer to the races in their car. Darnell then escorted Shertzer to the car in which Musser and another, who was not identified at the trial, were waiting. Shertzer was taken by the two

[ 172 Pa. Super. Page 47]

    occupants of the car to several barrooms in the City of Lancaster and vicinity. Shertzer finally attempted to escape when he realized that they were not going to the races. However, Shertzer was picked up and driven to a secluded spot on a side road by Musser and his companion. There they threw Shertzer down and jumped on him, Musser taking the wallet from Shertzer's pocket, which contained $250 to $275 in cash and $500 in traveler's checks. Shertzer was left at the scene of the robbery. Shertzer had known Musser for four or five years.

After Musser and Darnell had been arrested and released on bail to await trial, Shertzer found $150 in an envelope in his mail slot. The same evening Darnell asked him if had received anything; Shertzer described to Darnell what he had received. Darnell then gave to Shertzer $80 in cash, and a few days later $30 additional.

On this appeal Musser does not question the sufficiency of the evidence to sustain his conviction. Darnell complains that the trial judge erred in overruling his demurrer to the evidence. The Commonwealth's evidence was so obviously for the jury as to both defendants that an extended discussion would be superfluous. Darnell's demurrer to the Commonwealth's evidence was properly overruled. Commonwealth v. Waters, 148 Pa. Super. 473, 25 A.2d 756. See Commonwealth v. De Petro, 350 Pa. 567, 39 A.2d 838. The charge of the trial judge was very comprehensive, both as to the law and the facts, and it is not the subject of attack on this appeal.

We find no merit in the other two questions which defendants have raised. They complain that the trial judge committed reversible error in refusing to direct that the address of the district attorney to the ...


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