C. William Kraft, Jr., Media, for appellants Hampton and Hall.
William H. Turner and Robertson & Turner, Media, for appellant Murray.
J. Harold Hughes, Asst. Dist. Atty., Joseph E. Pappano, First Asst. Dist. Atty. and Raymond R. Start, Dist. Atty., Media, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 287]
The present appellants, with George W. Mayo, were charged with conspiring with each other 'to erect, set up, open, make or draw a lottery'. They along with Mayo were convicted by a jury and were sentenced. In each of these appeals it is contended that the evidence is insufficient to sustain the conviction. The charge of conspiracy relates to a numbers lottery within the provision of § 601 of the Penal Code of June 24, 1939, P.L. 872, 18 P.S. § 4601.
A confederation and agreement to effect an unlawful object seldom can be established by direct testimony as to its precise terms. The agreement nevertheless may be inferred from the acts of the parties, under the circumstances. Commonwealth v. Mittelman, 154 Pa. Super. 572, 580, 36 A.2d 860. 'It has been consistently and repeatedly held that the acts of the parties may show that there was a concerted action pursuant to a common design to accomplish a common purpose'. Commonwealth v. Weiner & Zvon, 148 Pa. Super. 577, 581, 25 A.2d 844, 847. 'Where the acts of the parties indicate that they were acting in concert to a common end, the jury properly may be permitted to infer that the concerted action was the result of an unlawful agreement'. Commonwealth v. Rosen, 141 Pa. Super.Ct. 272, 14 A.2d 833, 835. And the general rule is that when several persons have conspired together to commit an unlawful act, the acts and declarations of the members of the conspiracy, in furtherance of the common purpose, are original evidence against all of the other associates in the conspiracy agreement. Com. v. Jermyn, 101 Pa. Super. 455, 478; Commonwealth v. Weiner & Zvon, supra. The testimony of the acts of the appellants, and of Mayo, in this case established the existence of a conspiracy and
[ 173 Pa. Super. Page 288]
was competent proof that appellants were parties to the conspiracy agreement.
The neighborhood of Tenth and Forester Streets in the Borough of Darby was the field of activity of appellants Murray and Hampton as well as of Mayo. In the rear of a taproom on the southeast corner of the intersection there was a so-called 'trellis' and in the trellis on each of the several days referred to in the Commonwealth's testimony there was a brown bag in which number slips were deposited by writers and which ultimately was to be conveyed to the pay-off headquarters of the lottery. It is the acts of the appellants in relation to the brown bag that undoubtedly was accepted by the jury as evidence of unity of purpose spelling an agreement among them to violate the law.
During the morning of May 24, 1952, the appellant Hampton was observed in conversation with a number of white and colored people near the corner of Tenth and Forrester Streets in the Borough of Darby. He took money from a fish man and an ice man, among others, and gave each of them a carbon copy slip from a book in which he had made a notation. A trolley car stopped in front of the taproom and after Hampton took money from the conductor in exchange for a slip, he went to the trellis and there talked with a number of other persons and took money from them also and in each instance delivered a slip from his book. He took the brown bag out of the trellis several times during that morning and was seen there in conversation with Murray and Mayo. Hampton gave 939 Maple Terrace as his address. On May 27th State police officers arrested him there and in a search of ...