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COMMONWEALTH v. JOYCE (12/12/63)

December 12, 1963

COMMONWEALTH
v.
JOYCE, APPELLANT.



Appeal, No. 46, March T., 1963, from judgment of Court of Quarter Sessions of York County, Jan. T., 1961, No. 109, in case of Commonwealth of Pennsylvania v. David Joyce. Judgment affirmed.

COUNSEL

Sidney Schulman, for appellant.

Earl R. Doll, Assistant District Attorney, with him Daniel W. Shoemaker, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 202 Pa. Super. Page 352]

OPINION BY WRIGHT, J.

David Joyce was indicted by the Grand Jury of York County on a charge of possessing and maintaining gambling devices under Section 603 of The Penal Code.Act of June 24, 1939, P.L. 872, 18 P.S. 4603. Following the entry of a plea of not guilty and a trial, at which President Judge GEORGE W. ATKINS presided, the jury returned a verdict of guilty. Motions for a new trial and in arrest of judgment were refused, sentence was imposed, and this appeal ensued.

The Commonwealth proved that appellant was in possession of 69 slot machines, operated solely on the basis of chance. Appellant admitted possession of the machines, but asserted that he did not intend to use them for the purpose of gambling. The defense set up was that the machines had been purchased for resale to customers in England, and that appellant was in the process of having the machines converted in such a manner that they could be operated, not by the insertion of coins, but by electrical impulses activated on pulling the lever. Appellant testified that the prospective patron in England would pay for a certain number of plays, that the machine would be set so as to enable the patron to obtain a number of free plays, determined by chance, and that the patron's play would be terminated upon the exhaustion of the number of plays purchased, plus any free games which might have been won. During the trial appellant attempted to

[ 202 Pa. Super. Page 353]

    offer in evidence certain orders and invoices, together with a copy of a letter of credit from the Philadelphia National Bank. He also offered the depositions of two purported English purchasers. These offers were refused by the court.

The issue submitted to the jury was the question of appellant's intent. The trial judge gave instructions that, in order to return a verdict of guilty, the jury must be convinced beyond a reasonable doubt that appellant intended to use the machines for the purpose of gambling. He expressly charged that appellant should be acquitted if the jury found that his purpose in possessing the machines was to convert them for lawful use in the manner described.

Appellant's present counsel first complains of the rejection of the documentary evidence and depositions. This contention was not advanced in the post-trial motions, and was not passed upon by the court below. Matters not properly raised in the lower court may not be invoked on appeal: Commonwealth v. Mays, 182 Pa. Superior Ct. 130, 126 A.2d 530. So far as the depositions are concerned, there was no effort whatever to comply with statutory requirements. The documentary evidence was not properly authenticated, and we perceive no error in the refusal of the trial judge to admit it.

Appellant next contends that it was fundamental error to instruct the jury on the maxim falsus in uno, falsus in omnibus, in the absence of proof of falsity or contradiction on a material point. In his comprehensive charge, the trial judge discussed, in general terms, the matter of intentional false testimony on the part of any witness. The ...


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