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COMMONWEALTH v. CONWAY (09/13/61)

September 13, 1961

COMMONWEALTH
v.
CONWAY, APPELLANT.



COUNSEL

Joseph A. Damico, Jr., with him Chadwick, Petrikin, Smithers & Ginsburg, for appellant

Anna R. Iwackiw, Assistant District Attorney, with her Domenic D. Jerome, Assistant District Attorney, Ralph B. D'Iorio, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for Commonwealth, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Flood

[ 196 Pa. Super. Page 98]

OPINION BY FLOOD, J.

This appeal from defendant's conviction of bookmaking is based upon the trial judge's failure to submit the question of entrapment to the jury.

The appellant was a cab driver. The Commonwealth's testimony was that on November 19, 1959, Mrs. Esposito, a county agent, investigating a complaint about horse betting asked another cab driver where she could place a bet. He introduced her to the defendant. The defendant then told her he could get a bet in for her. She gave him $6 to bet on a horse "across the board". He took the money and said he would do so. She gave him additional money which he placed on horses on November 27, December 3, December 10, December 14 and December 30, 1959. Three times the horses came in and he paid her the winnings. On January 6, 1960, he met her and gave her winnings on horses played on December 30th but refused to take another bet, saying that he was scared.

The defendant testified that the first time the agent asked him to take her bet he said he would see if he could find anyone to take it to the track, that he then told her that no one was going to the track and he didn't take her bet; that on another occasion he gave it to someone to take to the track to bet for her and

[ 196 Pa. Super. Page 99]

    that at still other times he refused because he was busy; that he told her a couple of times that he was not a bookmaker, that he was busy and didn't have time and she said: "You are a good guy and I know you will do it." He answered "Yes" to a question of his counsel, asking whether she still insisted and coaxed him into taking the bets for her. He testified that she said she was a cab-rider and would request his cab. The agent denied that she said or did these things, but admitted on cross-examination that the defendant said he was going to find someone to give the bets to. She never rode in his cab.

He also testified that only once before had he been convicted of any crime, a crime of violence seventeen years before when he was seventeen years old. No testimony was submitted by the Commonwealth to rebut this.

The defendant requested the court to charge on entrapment. The court charged: "A man may not be heard to say he was tricked into breaking this kind of law ... defendant will not be heard to state that the offense originated in the minds of the officers, and that but for the suggestion and instruction by the officers the crime would not have been committed, where the evidence shows that the facts were to the contrary".

If the court meant by this that entrapment is never a defence to a gambling charge, it is an erroneous statement of the law. However, the last phrase "where the facts show to the contrary" indicates that what the trial judge was really saying was that under the testimony ...


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