Mark C. McQuillen, Angelo J. Baro, Reading, for appellant.
Edward Youngerman, Asst. Dist. Atty., Henry M. Koch, Dist. Atty., Reading, for appellee.
Before Rhodes, P. J., and Hirt, Ross, Gunther, Woodside and Ervin, Jj.
[ 176 Pa. Super. Page 652]
The indictment in this case charged defendant with pool-selling, bookmaking and recording bets on a horse race or horse races, with setting up a lottery, with being unlawfully concerned in the managing, conducting or carrying on of a lottery and with selling lottery tickets.*fn1 The count charging the defendant with selling lottery tickets was eliminated but he was found guilty by a jury on the remaining charges. After his motions in arrest of judgment and for a new trial were refused the defendant was sentenced to a term of not less than sixty days nor more than one year in the Berks County prison and to pay a fine of $500 and costs. This appeal followed.
On May 21, 1953 at about 2:30 P.M. a group of five police officers and detectives of the City of Reading, as the result of information received, having a search warrant, conducted a search of the premises occupied by the defendant at 206 North Fourth Street, Reading, Pennsylvania. On top of a desk in the dining room of
[ 176 Pa. Super. Page 653]
the defendant's home the officers found two newspapers, each an edition of The Morning Telegraph, a racing publication, one dated May 20, 1953 and the other dated May 21, 1953. The officers also found sheets and slips of paper on top of the desk and other sheets in a drawer of the desk. Many of the sheets had numbers listed on them while other sheets contained names of horses, numbers and other notations. Also found were two programs from a race track, a handicapper sheet, and a 1951 desk memorandum containing notations of days and numbers and a small loose-leaf notebook containing a columnar listing of the days of the week with different numbers listed opposite certain of the days shown thereon. At the trial, one of the detectives in the group that searched the premises of the defendant identified the articles found in the defendant's home and explained how the sheets containing the columnar listings of numbers were customarily used in the 'numbers' game and how the sheets containing columnar listings of horses' names, various letters and numbers were used in pool-selling and bookmaking. In explaining how bets on horse races are recorded the detective stated: 'First the horse's name is taken, then the track, the number of the race the horse runs in, whether the first, second, third, fourth, fifth, sixth, seventh or eighth race. Then the name of the track is either written out or initialed after the race. Further on there are notations as to the amount bet. There are three positions the man can bet. first to win, second for place, third to show.' It was also explained that the recording of an 'X' in one or more of the three positions indicated no bet was made on that position. The correlation between information contained in the racing publication, The Morning Telegraph, and the sheet with the horses' names, and other notations thereon, was explained as
[ 176 Pa. Super. Page 654]
follows: One of the slips of paper contained the notation 'Big Print' and immediately after that a notation of '7' and the letter 'y.' The detective was asked:
'Q. In looking over the Telegraph did you find the name of Big Print? A. Yes, I find the name of Big Print, the name of a horse running in the 7th race in New York Belmont Park ...