Appeal, No. 406, Oct. T., 1959, from judgment of Court of Oyer and Terminer of Philadelphia County, Feb. T., 1959, No. 173, in case of Commonwealth of Pennsylvania v. Herman Johnson. Judgment reversed.
Fitzhugh Lee Styles, for appellant.
Juanita Kidd Stout, Assistant District Attorney, with her Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
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This appeal is from the conviction and sentence imposed upon the appellant, Herman Johnson, charging
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him with burglary and larceny at No. 173 February Sessions, 1959 in the court below.
On January 24, 1959, at about 6:45 A.M., Kay's Sunoco Station located at 16th Street and Girard Avenue, in the city of Philadelphia, was burglarized. Entrance was obtained by breaking a window in the overhead garage door. Freddie Goldwire, an employe of this station and who was on his way to work, approached the station and saw the garage door up, and a Cadillac, which had been left in the alley behind the garage the night before, was backed up to the door. Goldwire testified that he saw appellant, also an employe of the station, standing at the cash register putting money in his pocket. He spoke to him and asked what had happened and was informed by defendant that the owner was robbed. When Goldwire went to the telephone to call the owner, defendant pulled away in the Cadillac which was recovered some three weeks later in a damaged condition.
The proprietor of the station corroborated Goldwire's testimony as to his custody of the Cadillac which had been left in the alleyway. He also testified as to the amount of money that should have been in the cash register. He also testified that defendant saw him place $85.00 in the cash register the night before for the purpose of purchasing car parts the next morning. The proprietor testified that defendant was not due at work before eight o'clock in the morning and that he had no permission to enter the premises before that hour; that he had no key and that he had no permission to remove the automobile.
Defendant's defense was an alibi. He testified that he spent the night with friends of his family, Mr. and Mrs. Hall, at 1030 Dakota Street in the city of Philadelphia since he missed the bus to Atlantic City. He ...