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COMMONWEALTH v. GAZAL (01/21/58)

January 21, 1958

COMMONWEALTH
v.
GAZAL, APPELLANT.



Appeals, Nos. 212 and 213, April T., 1957, from judgments of Court of Quarter Sessions of Allegheny County, Feb. T., 1955, Nos. 341 and 507, in case of Commonwealth of Pennsylvania v. William T. Gazal. Judgments affirmed.

COUNSEL

J. I. Simon, with him James A. Danahey, for appellant.

William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.

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

Author: Woodside

[ 185 Pa. Super. Page 92]

OPINION BY WOODSIDE, J.

This is an appeal by the defendant, William T. Gazal, from the judgments of sentence of the Court of Quarter Sessions of Allegheny County. Defendant was tried before a jury on two charges of operating a lottery and particularly of having in his possession with intent to sell or barter lottery or numbers tickets. He was convicted on both indictments. Motions for a new trial and in arrest of the judgments were dismissed by the court below.

The evidence showed that defendant had been arrested on two occasions, once with 111 and the other time with 89 currently dated yellow "number slips" of the type collected by "pick-up men".

At the trial of the case the Commonwealth was unable to produce the number slips which the evidence showed had been taken from the defendant at the time of his arrest. Over defendant's objection, testimony was produced to establish the general operation of the county detective bureau as to evidence confiscated from

[ 185 Pa. Super. Page 93]

    arrested persons, the chain of custody of the particular numbers slips here involved, and a diligent search for the slips. The arresting officers then testified that the slips taken from the defendant were yellow slips of paper of the type received by "pick-up men" in the operation of a "numbers game."

Defendant contends that since possession of the numbers slips is an essential element in the proof required for a conviction, secondary evidence of such slips should be inadmissible. In substance, his argument is that the best evidence rule "should be applied to exclude secondary evidence of the existence of a writing, document, or record the possession or existence of which determines the commission of a crime." We can find no authority for this proposition. On the contrary, the best evidence rule has been held applicable only in cases where a party has introduced secondary evidence to prove the terms or contents of a writing and the rule's application has been limited to this situation. Cupples, Jr. v. Yearick, 99 Pa. Superior Ct. 269 (1930); Commonwealth v. Pollack, 174 Pa. Superior Ct. 621, 101 A.2d 140 (1953).

In the case before us the jury was not concerned with the terms or contents of the number slips, but only with whether the papers were number slips. Professor Wigmore has the following to say concerning the rule for documentary originals: "Thus the rule applies only to the terms of the document, and not to any other facts about the document. In other words, the rule applies to exclude testimony designed to establish the terms of the document, and requires the document's production instead, but does not ...


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