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COMMONWEALTH v. MOORE (11/16/55)

November 16, 1955

COMMONWEALTH
v.
MOORE, APPELLANT.



Appeal, No. 262, Oct. T., 1955, from judgment of Court of Quarter Sessions of Philadelphia County, Nov. T., 1954, No. 879, in case of Commonwealth of Pennsylvania v. Anthony Moore. Judgment affirmed.

COUNSEL

Martin Vinikoor, with him Vinikoor & Criden, for appellant.

Christopher F. Edley, Assistant District Attorney, with him Victor Wright, Assistant District Attorney, Vincent G. Panati, First Assistant District Attorney, and Samuel Dash, District Attorney, for appellee.

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

Author: Gunther

[ 180 Pa. Super. Page 539]

OPINION BY GUNTHER, J.

This is an appeal from the judgment of sentence of the Quarter Sessions Court of Philadelphia County.

The defendant was arrested and charged with setting up and maintaining an illegal lottery. He was tried before Judge BOK without a jury under Section 601 of the Penal Code of 1939, which provides:

[ 180 Pa. Super. Page 540]

"... Whoever, either publicly or privately, erects, sets up, opens, makes, or draws any lottery, or is in any way concerned in the managing, conducting or carrying on the same, is guilty of a misdemeanor ..." He was found guilty. Motions for a new trial and in arrest of judgment were dismissed by the court below, and this appeal was taken.

The evidence produced by the Commonwealth was that Patrolman James Burns, in company with two other officers, overheard defendant accept over the telephone a lead bet on the number seven for the rest of the week for a dollar. The defendant then hung up the telephone. On another telephone call, the police testified to the following conversation, where the defendant is reputed to have said, "You want 110 for two and a half," and "After 1:30, I am going to fold up." When the officer entered the premises after the above conversations, the defendant ran to the bathroom and flushed something down the commode. Some pieces of literature, such as flash paper and number guides, usually relating to lotteries, were about the premises.

Appellant contends that the evidence was of insufficient nature and quality to warrant a conviction. The defendant did not take the witness stand.

The question to be considered is what kind or what volume of evidence is necessary to secure a conviction for lottery? In Commonwealth v. Mattera, 151 Pa. Superior Ct. 135, 30 A.2d 168, President Judge KELLER held that evidence necessary to secure a conviction for conducting a lottery or selling tickets ...


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