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COMMONWEALTH v. SALERNO (07/21/55)

July 21, 1955

COMMONWEALTH
v.
SALERNO, APPELLANT.



Appeals, Nos. 137 and 138, Oct. T., 1955, from judgments of Court of Quarter Sessions of Delaware County, March T., 1954, Nos. 560 and 561, in case of Commonwealth of Pennsylvania v. James Salerno. Judgments affirmed.

COUNSEL

Michael von Moschzisker, with him Jacob Kossman, for appellant.

J. Harold Hughes, Assistant District Attorney, with him Raymond R. Start, District Attorney, and Joseph E. Pappano, First Assistant District Attorney, for appellee.

Before Rhodes, P.j., Ross, Gunther, Wright, Woodside, and Ervin, JJ. (hirt, J., absent).

Author: Ross

[ 179 Pa. Super. Page 15]

OPINION BY ROSS, J.

This is an appeal by James Salerno after his conviction by a jury on two indictments, one charging conspiracy to engage in bookmaking, and the other bookmaking.

Appellant and one John DuHadway, for approximately six months prior to October 30, 1952, had an arrangement by which the latter allegedly turned over to appellant as banker horse bets placed by various persons. On one of the bets placed by a man named Raffa the appellant refused to pay off with the result that DuHadway ceased doing business with him. Thereafter DuHadway apparently placed the bets with some other person. On July 20, 1953 the police raided DuHadway's home and found evidence of the bookmaking and in due course both appellant and DuHadway were indicted, inter alia, for bookmaking and conspiracy to engage in bookmaking. They were indicted separately but each was accused of conspiring with the other and

[ 179 Pa. Super. Page 16]

"with divers other evil disposed persons". Admittedly appellant, if guilty of conspiracy at all, is guilty of conspiracy only with DuHadway under the state of the record here. The indictments against both DuHadway and Salerno on the bookmaking and conspiracy charges were laid on July 20, 1953. DuHadway was tried first and convicted of the bookmaking charge (which we affirmed in Com. v. DuHadway, 175 Pa. Superior Ct. 201, 103 A.2d 489), but he demurred to the evidence on the conspiracy charge and was sustained. When appellant was tried, the evidence clearly indicated that he could not have been guilty of a conspiracy with DuHadway on July 20, 1953 as charged in the indictment, but that if he was guilty of a conspiracy at all it could not have been later than October 30, 1952 when he and DuHadway parted ways. The Commonwealth was allowed, therefore, to amend the indictments on the conspiracy and bookmaking to change the alleged date from July 20, 1953 to October 30, 1952. Appellant moved the court to dismiss the conspiracy charge because DuHadway's demurrer in his trial had been sustained and, therefore, he as one of the two conspirators, had in effect been acquitted. The court refused this motion. Appellant asked for a point for binding instructions and requested the court to charge that he should be acquitted because the only other conspirator had been acquitted. This was refused and the case was submitted to the jury on both charges. A verdict of guilty was returned in both and appellant's motion in arrest of judgment and for new trial based, inter alia, on this ground, was dismissed, whereupon appellant was sentenced on each of the charges, and this appeal followed.

In a charge for conspiracy the Commonwealth must prove that two or more are guilty. Com. v. Faulknier, 89 Pa. Superior Ct. 454, 459 Where, therefore, there

[ 179 Pa. Super. Page 17]

    are only two conspirators and one is acquitted, the other cannot, of course, be tried or convicted. Com. v. Avrach, 110 Pa. Superior Ct. 438, 441, 168 A. 531. The law requires only that there be at least two guilty conspirators, not that there be two convicted conspirators. Where one of two conspirators is acquitted, then there is a legal determination that one is innocent and thus there cannot be two guilty conspirators. Where, however, one is not yet indicted or for some reason cannot be tried, there is no bar to the conviction of the other. For example in Com. v. Hoffman, 103 Pa. Superior Ct. 433, 157 A. 221, Hoffman was convicted of conspiring with certain persons who were employes of a mill which was on strike. Hoffman was not an employe, hence was not benefited by a statute which relieved striking employes from prosecution for conspiracy. The only other conspirators were employes. Hoffman contended that since the other conspirators could not be prosecuted he could not be convicted. This argument was rejected and it was held that "... if [Hoffman] ... conspired with them to do such unlawful and criminal acts, he might be indicted, convicted and punished for so conspiring, although they could not." And in Com. v. Bonnem, 95 Pa. Superior Ct. 496, 502: "The principle is therefore well established in this state that one of two or ...


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