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COMMONWEALTH v. POLITE (09/16/59)

September 16, 1959

COMMONWEALTH
v.
POLITE, APPELLANT.



Appeal, No. 278, Oct. T., 1959, from judgment of Court of Quarter Sessions of Philadelphia County, July T., 1958, No. 531, in case of Commonwealth of Pennsylvania v. Rose Polite. Judgment affirmed.

COUNSEL

Harry R. Back, for appellant.

Juanita Kidd Stout, Assistant District Attorney, with her Victor H. Blanc, District Attorney, for appellee.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).

Author: Rhodes

[ 190 Pa. Super. Page 331]

OPINION BY RHODES, P.J.

The defendant, Rose Polite, was tried by a judge without a jury and convicted on an indictment charging her with setting up and being concerned in the conduct and carrying on of an illegal lottery; with having in her possession a lottery numbers ticket or writing; and with unlawfully selling lottery numbers tickets or writings.She was sentenced to a term of not less than three months and not more than six months in the Philadelphia County Prison.

This appeal is from the judgment of sentence and concerns the nature and sufficiency of the evidence to sustain the conviction.

The evidence viewed consistent with and favorable to the verdict established the following facts and circumstances. On May 20, 1958, the police found defendant in a luncheonette which was being investigated for numbers activity because of a complaint. Defendant was briefly questioned and then, with another occupant of the luncheonette, was taken in a police car from the luncheonette to police headquarters for further investigation. During the ride defendant and the other occupant were seated in the back seat of the police car. The front seat was occupied by the driver and by a police officer, Bresnahan, who was observing the occupants in the rear seat. During the course of the ride Bresnahan saw the defendant slip something shiny between the curved part of the rear seat and the back of the rear seat. He evidenced no immediate reaction, but when the passengers were discharged at the police station he lifted the seat and found a piece of tin foil in which was wrapped a sheet of paper, torn on one edge and upon which numbers were written, together with two one-dollar bills and two fifty-cent pieces. When confronted with this evidence, defendant denied slipping the paper between the seat, stated that she had "nothing to hide," and suggested that the police search her

[ 190 Pa. Super. Page 332]

    home. That invitation was accepted. In the home of the defendant, the police found a piece of paper with a torn edge which matched the paper found in the police car. In addition to the matching edge, both pieces of paper had mimeographing of the same type on the reverse side and both were of the same texture and contained the date of May 16th.

As the court below concluded: "It was thus clear that the paper found in the defendant's home and the paper found in the tin foil had been one and the same sheet before being torn." Defendant's denial of having slipped the tin foil, paper, and money behind the seat of the police car is thus contradicted by the evidence.

The numbers written upon the paper secreted by defendant were of the type normally used in the numbers racket. There were twenty-three groups of numbers, each consisting of three digits, a dash, then two digits, i.e., "000-15." The first three ...


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