Willis A. MacDonald, Butler, for appellant.
Clark H. Painter, Dist. Atty., Butler, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 172 Pa. Super. Page 366]
The indictment in this case charged defendant with setting up a lottery, and with managing, conducting and carrying on the same, in violation of Section 601 of The Penal Code of June 24, 1939, P.L. 872, 18 P.S. § 4601. He was found guilty by a jury on both counts and a single sentence, to pay a fine of $150, was imposed. In this appeal from the refusal of a new trial it is not contended that the lower court is chargeable with trial errors; the questions raised by appellant
[ 172 Pa. Super. Page 367]
all go to the sufficiency of the evidence upon which the defendant was convicted.
The Logan Candy Company, a wholesale candy dealer, has its principal place of business on Cunningham Street in Butler. It also owns a large garage building on North Cedar Street which it uses in conjunction with its business for the storage of merchandise. On January 9, 1951, a detail of the Pennsylvania State Police went to both buildings for the purpose of making a routine investigation to determine whether punch boards or other lotteries were possessed by the company in violation of the Penal Code. At the Cunningham Street address officer Linhart contacted the defendant Samuel R. Logan a member of the Logan Candy Company. Linhart testified that he had search warrants for both buildings and that this defendant, when so informed, said that: 'He had moved all his punch boards to the North Cedar address'. He conducted Linhart to the company's warehouse on North Cedar Street and there disclosed to the police officers a large quantity of punch boards with cards and other accessories used in their operation. After this material had been seized and loaded on a truck by the police, defendant said to them: 'That he would be the one responsible for answering the charge as an officer of the company. * * * That he would be the one that would answer the charge for the punch boards'. The property seized by the officers, when inventoried, was found to be '4393 red punch boards and picture cards and different types of punch boards'.
In a previous raid on December 19, 1950, a State Police officer found a Bingo punch board set up on the counter of Ray Edens Service Station and Grocery in Butler County. At 5 cents a punch a player had a chance of winning a maximum of $9.45 on this type of board although the operator could fix the jackpot at
[ 172 Pa. Super. Page 368]
any amount. With the Bingo board the officer also seized three extra fillers to be used in succession on the board when the one in play was punched out. Eden gave to the officer a receipted invoice from the Logan Candy Company showing a charge to him of $10 for 5 Bingo punch boards which included the one in operation found by the officer. On a charge of setting up the lottery Eden pleaded guilty and paid a fine. On the same day, also, the State Police found a punch board in play in the service station of John W. Custead near Butler. He had bought it from Logan Candy Company and when he was charged with setting up a lottery based upon the sales of chances on this punch board he too pleaded guilty.
A police officer identified and described punch boards of other types which had been seized in the warehouse of Logan Candy Company and had been taken to the police barracks. Among them were Horse Racing boards which cost $8.00 each, on which at 10 cents a punch the possible amount which could be won ranged from $15 down to $3.00. Another board had a total take of $252 and paid out $158 showing a possible gross profit of $94. There were Easter Season boards with 2,000 punches on which the operator determined the cost of play and selected appropriate Easter prizes for the winners. Other boards had no prizes attached but it is a fair inference that these as well as the prizes on the Easter boards would be supplied in candy or other merchandise by the Logan Company. Of much significance, bearing on the question of the criminal liability of the defendant, is the fact that many ...