Appeals, Nos. 248 and 249, April T., 1954, from judgments of Court of Quarter Sessions of Erie County, Sept. T., 1953, No. 15, and May T., 1953, No. 354, in case of Commonwealth of Pennsylvania v. Ben Kaufman. Judgments affirmed.
John M. Wolford, for appellant.
Herbert J. Johnson, Jr., Assistant District Attorney, with him Damian McLaughlin, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Wright, Woodside, and Ervin, JJ. (gunther, J., absent).
[ 179 Pa. Super. Page 248]
Defendant was convicted with two others on the charge of conspiracy to commit larceny. The accomplices had pleaded guilty to the charge. On a second
[ 179 Pa. Super. Page 249]
indictment defendant was found guilty of receiving stolen goods. He was sentenced on both convictions. These are appeals from the refusal of his motion for a new trial and in arrest of judgment.
By the verdicts these facts, on undisputed testimony, must be taken as established. Defendant is a junk dealer. Louis Marx Company, a manufacturer of toys, maintains a large storage warehouse in Erie. Both Rudolph Colonna and Joseph Orsini, Kaufman's co-defendants in the conspiracy case, were employed there. They clandestinely removed 110 bags of new plastic molding powder from their employer's stock and concealed it on the premises. The bags weighed 50 pounds each. By arrangement with the defendant they later delivered all of this material to a garage designated by him. They were to be paid for the material by the defendant and they understood that they were to receive about $400 for the lot, worth in all more than $2,000. The defendant when arrested gave one of the officers a key to the garage where the material had been delivered to him by Colonna and Orsini. The evidence clearly established that the material was stolen from the Marx Company and that it was received by the defendant with knowledge that it was recently stolen property. On this phase of the trial of the defendant for receiving stolen goods, the court charged the jury that "if you believe Colonna and Orsini that they stole these 110 bags or any portion of them from the Marx Company, and if you believe that they delivered them into the possession of Ben Kaufman, and if you believe they were put there and came into his possession, then there is a duty upon the defendant to come forth and show that the possession was in a legal manner and not in the nature of a criminal manner, because there is a theory or rule of law that a person in possession of recently stolen property
[ 179 Pa. Super. Page 250]
must explain that possession. If it is once shown that the property that was stolen was in his possession then he must give a reasonable explanation as to how it came into his possession to exculpate himself. That is not incumbent upon him until you decide two elements, first, whether it was stolen, and second, whether he actually got possession. You must be satisfied beyond a reasonable doubt that the goods were actually stolen, must believe beyond a reasonable doubt that the goods came into the possession of Ben Kaufman, and if satisfied of that then you can consider the absence of explanation as to why he got them and any manner by which he might exculpate himself from responsibility." And in response to defendant's objection to the above charge "as to the burden of proof" the court further instructed the jury in this language: "Members of the jury, we have told you that the burden of proof is upon the Commonwealth to prove all the elements beyond a reasonable doubt and that responsibility stays with them. The explanation as to recently acquired stolen property being on the defendant does not change the overall burden of proof but is to be considered in connection with that burden of proof." Defendant excepted specifically to the above portions of the charge.
The defendant did not take the stand nor did he offer any evidence as to how he came by the material. We nevertheless are unable to agree that there is error in the charge of the court as to the "duty upon the defendant ...