Appeals, Nos. 213 and 214, Oct. T., 1958, from judgments of Court of Quarter Sessions of Berks County, June T., 1955, No. 158, in case of Commonwealth of Pennsylvania v. Robert John Watt, Jr. et al. Judgments affirmed.
LeRoy Hyman, with him Samuel R. Liever, and M. Bernard Hoffman, for appellants.
Peter F. Cianci, Assistant District Attorney, with him Frederick O. Brubaker, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 53]
Defendants, Roy Stocker and Robert John Watt, Jr., were indicted on charges of burglary, larceny, and possession of burglary tools. They were both found guilty of larceny and not guilty on the other counts. A motion for a new trial and arrest of judgment was filed and denied. On February 21, 1958, defendants were sentenced to serve a term of four to twenty-three months in the Berks County Prison, to pay a fine of fifty dollars each and to pay the costs. This appeal followed.
There are before us two questions to decide: (1) When defendants are charged on three counts of an indictment with burglary, larceny, and possession of burglary tools, each count rising out of the same series of transactions, is a conviction on the larceny count alone an improper verdict? (2) Was the court's charge proper and adequate?
The issue is whether or not the Commonwealth's evidence was sufficient to support a conviction on the charge of larceny. In this case the Commonwealth proved by eyewitnesses who testified that defendants entered an automobile and took certain articles of clothing therefrom. Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. In Commonwealth v. Kline, 107 Pa. Superior Ct. 594, 599, 164 A. 124, this Court stated as follows:
"Conceding, only for the sake of argument, that there is an inconsistency or repugnancy between the verdicts on the fourth and fifth counts in that the charges are identically the same or that some fact was necessarily found adversely to the Commonwealth by the verdict on the earlier count which was an essential element in the fifth count, such is not sufficient ground for arresting judgment on the verdict of guilty."
[ 187 Pa. Super. Page 54]
See also Commonwealth v. Donato et al., 87 Pa. Superior Ct. 285; Commonwealth v. Wade, 156 Pa. Superior Ct. 88, 39 A.2d 460; Commonwealth v. Shrodes, 158 Pa. Superior Ct. 135, 44 A.2d 319.
Since the crimes of burglary and larceny are different, there can be no inconsistency in convicting on one count and not the other, even though the same evidence is relied upon for both charges. See Commonwealth ex rel. ...