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COMMONWEALTH v. VOGLE (01/19/54)

January 19, 1954

COMMONWEALTH
v.
VOGLE



COUNSEL

Maurice L. Epstein, Towanda, William G. Schrier, Athens, for appellant.

C. Wayne Smyth, Dist. Atty., Towanda, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Wright

[ 174 Pa. Super. Page 543]

WRIGHT, Judge.

Appellant and her sister operate a small soda fountain and magazine store in the Borough of Towanda. Robert Clancy, who operates a contracting business in said Borough, reported to the Borough Police that certain tools were missing. Investigation developed the fact that the theft had been committed on November 9, 1952, by a fourteen year old boy, Robert Lamphere. The boy accompanied the investigating officers to appellant's place of business where he identified her as the person to whom he had sold the tools

[ 174 Pa. Super. Page 544]

    for a small fraction of their value. Appellant stated that she did not have the tools. A search warrant was obtained and a pair of electrician's pliers, a hammer, a crescent wrench and tape measure, all identified by Clancy, were found in a cupboard back of the soda fountain in appellant's store. There was evidence that appellant had purchased various articles for small sums from the boy in the past, and that the boy's mother had requested appellant to make no further purchases. There was also evidence that appellant objected to the search and, while it was in progress, offered to pay for the stolen articles. The evidence was conflicting in many particulars, and no useful purpose would be served by further detailing it here. It is sufficient to say that the jury returned a verdict of guilty of receiving stolen goods. The lower court refused to grant a new trial, and this appeal followed.

Appellant's complaint is directed entirely to the charge of the trial judge. She contends that the charge was argumentative in favor of the Commonwealth, and was unfair and prejudicial to the defendant. After reviewing the charge in its entirety, we have concluded that it was thorough, unbiased and actually more favorable to appellant than it might have been under the circumstances. Since appellant alleges that a number of excerpts from the charge are objectionable, we must of necessity set them forth seriatim, although none merit extended discussion. Excerpt 3 was particularly stressed, and we will consider it out of order at the conclusion of our opinion.

Excerpt 1 is the statement: 'Members of the jury, it is for you to say whether the officers told you the truth when they say they found them down there'. Excerpt 2 is the statement: 'The testimony is, on the part of some of those officers, that the property was back of the counter. Now, it is for you to say whether it

[ 174 Pa. Super. Page 545]

    was found there or not -- whether they are telling the truth, and what inferences may be drawn therefrom'. These two statements referred to the testimony of the police officers that the stolen tools were found back of the counter in appellant's store. In effect, the trial judge submitted the question of the officers' credibility to the jury, even though their testimony on this point was not disputed. The jurors were entirely free to decide the factual issues. See Commonwealth v. Baker, 146 Pa. Super. 559, 22 A.2d 602.

Excerpt 4 is the statement, in connection with the testimony of Robert Lamphere: 'He also said, and I don't recall that this was denied -- that is for you -- that she did not ask him where he got them. Now, would a person buying for an honest reason ask a boy of this age, who came in day after day right along for five days intermittently, or however, you find it to be -- would she ask him where he got those articles, and if she didn't ask him, would she be failing to ask so she wouldn't have a guilty conscience?' We do not find anything objectionable in this statement. It was proper for the trial judge to ...


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