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COMMONWEALTH v. DIXON (07/21/55)

July 21, 1955

COMMONWEALTH
v.
DIXON, APPELLANT.



Appeals, Nos. 68 and 69, Oct. T., 1955, from judgment of Court of Oyer and Terminer of Philadelphia County, Feb. T., 1954, No. 564, in cases of Commonwealth of Pennsylvania v. Leo Coleman alias Clee Coleman et al. Judgment affirmed.

COUNSEL

Morton Witkin, with him I. Raymond Kremer and Witkin & Egan, for appellant.

Victor Wright, Assistant District Attorney, with him Samuel Dash, Acting District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 179 Pa. Super. Page 3]

OPINION BY ERVIN, J.

This is an appeal from the sentence of Roy Dixon for the crimes of lottery and conspiracy to commit lottery. Dixon was jointly indicted on bills of indictment Nos. 563 and 564 of February Sessions, 1954, with four other defendants, Caswell Curtis, Joseph Ford, Caesar Nelson and Leo Coleman. In bill of indictment No. 563 the defendants were charged with conspiracy to commit bribery and corrupt solicitation of certain police officers and with bribery and corrupt solicitation. The defendant was acquitted on this indictment. In bill of indictment No. 564 the defendants were charged in the first count with erecting, setting up, opening, making and drawing of a lottery on July 1, 1952; in the second count with being concerned in the management, conducting and carrying

[ 179 Pa. Super. Page 4]

    on of a lottery on July 1, 1952; in the third count with having in their possession with intent to sell and unlawfully selling lottery and numbers policy on July 1, 1952; in the seventh count the defendant was individually charged with erecting, setting up, opening, making and drawing a lottery on January 27, 1953; in the eighth count the defendant is individually charged with being unlawfully concerned in the management, conducting and carrying on of a lottery on January 27, 1953; in the ninth count the defendant was individually charged with having in his possession with intent to sell and unlawfully selling lottery and numbers policy on January 27, 1953; and in the 13th count defendants were charged with conspiracy to set up, make, open and draw a lottery for moneys, and to be concerned in the management, conducting and carrying on of the same, and to have in their possession with intent to sell and to unlawfully sell lottery policies and tickets on or about October 1, 1952. In addition the defendant Leo Coleman alone was indicted in bill of indictment No. 861 of August Sessions, 1953 for setting up an illegal lottery. Dixon was convicted on counts 1, 2, 7, 8 and 13 of indictment No. 564 and found not guilty as to counts 3 and 9 of the same indictment. Defendant was sentenced on counts 1, 2 and 3 of indictment No. 564 to not less than six months nor more than one year in the Philadelphia County Prison and on count No. 13 to not less than three months nor more than eleven months in the same prison to begin at the expiration of the sentence imposed on counts 1, 2 and 3.

The arguments presented on appeal will be disposed of in the same order as argued.

The defendant argues that bills of indictment No. 861 August Sessions, 1953 and Nos. 563 and 564, February Sessions, 1954, should not have been consolidated

[ 179 Pa. Super. Page 5]

    for trial. He also contends that his motion for severance of the trials of the several defendants should have been granted. We agree that the trial court's ruling in favor of the Commonwealth on both of these points was not error. These matters were within the discretion of the trial judge. Com. v. Novak, 165 Pa. Superior Ct. 576, 69 A.2d 186, cert. den. 339 U.S. 924, 70 S.Ct. 615, 94 L.Ed. 1346. This is especially true "where all the evidence that was admissible on the crimes charged in the other indictments tended to support the conspiracy charge. ..." Com. v. Weiner and Zvon, 148 Pa. Superior Ct. 577, 25 A.2d 844; Com. v. McCord, 116 Pa. Superior Ct. 480, 176 A. 834; Com. v. Mulroy, 154 Pa. Superior Ct. 410, 36 A.2d 337. See also Com. v. Quinn, 144 Pa. Superior Ct. 400, 19 A.2d 526, where we said: "... the testimony showed a general course of conduct... all tending to the same general end."; Com. v. Ackerman, 176 Pa. Superior ...


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