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COMMONWEALTH EX REL. CHATARY v. NAILON (01/05/65)

decided: January 5, 1965.

COMMONWEALTH EX REL. CHATARY, APPELLANT,
v.
NAILON



Appeal from order of Superior Court, Oct. T., 1963, No. 259, affirming order of Court of Common Pleas of Montgomery County, No. 63-2447, in case of Commonwealth ex rel. Michael Paul Chatary v. Francis M. Nailon, Warden.

COUNSEL

David C. Harrison, for appellant.

Richard A. Devlin, Assistant District Attorney, with him Richard S. Lowe, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell dissents.

Author: Eagen

[ 416 Pa. Page 281]

Two dwelling houses in Montgomery County, Pennsylvania, were burglarized sometime between December

[ 416 Pa. Page 2822]

and December 7, 1960.*fn1 Several articles were stolen therefrom, including a camera and a pair of binoculars. On December 10, 1960, for reasons unconnected with the said burglaries, police officers of the City of Philadelphia searched the automobile of Michael Paul Chatary, in the City of Philadelphia, County of Philadelphia, and found certain of the aforementioned stolen articles therein. As a result, Chatary was later indicted in Montgomery County on charges of burglary, larceny and receiving stolen goods.

Chatary was tried on the indictments on April 27 and August 7, 1961, in Montgomery County before a judge without a jury. He was found guilty on the indictments charging the crime of receiving stolen goods, but not guilty on the burglary and larceny indictments. He was sentenced on October 23, 1961, to a term of imprisonment in the county prison of from two and one-half to five years.

At trial, the only evidence offered by the Commonwealth to connect Chatary with the crimes charged was his possession of the stolen goods in Philadelphia County, as discovered by the Philadelphia police in the manner hereinbefore related. Chatary testified and denied involvement in the crimes charged and offered testimony in explanation of the presence of the stolen goods in his automobile. The trial judge found the defendant's denial "incredible" and his explanation of the possession "fantastic." Nevertheless, he acquitted him of the burglary and larceny charges.

No question as to the lack of proof of venue was specifically raised at trial, although the defendant did demur to the Commonwealth's evidence, which was overruled. The question was first presented specifically in a post trial motion seeking a new trial, which

[ 416 Pa. Page 283]

    was denied. An appeal to the Superior Court from the judgment of sentence was quashed for failure to ...


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