173 Pa. Super. 545 | Pa. Super. Ct. | 1953
Opinion by
On his second trial, appellant was convicted and later sentenced for receiving stolen goods after a trial by a judge without a jury. After appellant’s demurrer was overruled he moved for a directed verdict without presenting any evidence. This motion was denied. He appealed from the dismissal of his motion for a new trial, and questions: (1) The action of the trial judge in allowing an amendment of the indictment;
On August 23, 1950 a time chartered vessel operated by the Isbrandtsen Company docked at Pier 48, located at Delaware and Washington Avenues, Philadelphia, with a shipment of lead ingots consigned to the Economic Cooperation Agency, an agency of the United States Government. The Government purchased these ingots from the Continental Lead Corporation, which shipped them through its foreign supplier in Rotterdam, Holland, on two separate and orgi-nal bills of lading, covering 9,892 and 26,763 ingots respectively. Title and risk of loss passed to the Government when the ingots were loaded on the vessel and “clean on-board bills of lading” were signed by the steamship company’s duly authorized representative. After the vessel docked, the count showed three ingots short after discharge of the cargo from the vessel to the dock. A second count, made as these ingots were loaded from the dock to the railroad cars on Pier 48, showed a total of fifty-one ingots missing.
On August 24, 1950, at about 5:40 p.m., appellant was arrested while his automobile was parked in front of a junk shop at 719 South 12th Street, Philadelphia. The arresting officers noticed that the automobile was “hanging low in the rear” and upon investigation found four lead ingots in the back seat. Appellant was taken to police headquarters where Detective Coan questioned him. He told Coan that he got the ingots from three, stevedores he knew near the pier at Delaware and Washington Avenues. Appellant said that when he met the three stevedores, they had ten ingots with them and gave them to him because he said he could sell the ingots for them. The place where appellant said he received the ten ingots was within 40 feet of the entrance to the pier-near, which a quantity of the in
After the police notified the steamship company that they had recovered certain lead ingots, an agent for the company identified them. The agent stated the ingots were of the same description as those removed from the ship and the size and shape were identical to those discharged from the vessel onto the dock.
At the start of the trial, the Commonwealth moved to amend the bill of indictment to allege ownership in the Economic Cooperation Agency, a branch of the United States Government, instead of The Pennsylvania Railroad, which had previously been alleged as owner in the bill. The amendment was allowed, over objection, and the trial proceeded. The authority for the allowance by a trial court of an amendment of an indictment to conform with the proof is provided by the Act of March 31, 1860, P. L. 427, §13, 19 P.S. §433, the pertinent part of which is set out in the footnote.
Appellant clearly was not prejudiced in his defense on the merits. Appellant had the right to ask for a continuance on the basis of a plea of surprise. Moreover, the court expressly offered appellant an opportunity to plead surprise but he elected to proceed to trial on the merits. See Com. v. Neuman, 151 Pa. Superior Ct. 642, 30 A. 2d 698. Appellant’s argument against the allowance of the amendment on the ground that there was no evidence before the court when it allowed the amendment is without merit. The Commonwealth made an offer of proof to show ownership other than that originally alleged in the bill of indictment. The allowance of the amendment after the offer of proof but prior to the admission of any evidence is proper when the record shows the amendment conformed to the proof.
Although the evidence of appellant’s guilt is largely circumstantial, the court below was fully justified in concluding that the ingots found in appellant’s possession were part of the forty-eight ingots missing, that the ingots had been stolen, and that appellant knew they were stolen. In Com. v. Meyers, 154 Pa. Superior Ct. 8, 34 A. 2d 916, it was contended that the Commonwealth had to prove that the defendant did not get possession of the goods allegedly received from any source other than the alleged owner whose goods were stolen. This Court dismissed that contention and said: “The complete answer to this contention is that the burden resting upon the Commonwealth to prove its case beyond a reasonable doubt does not require it to demonstrate the utter impossibility of innocence. The true rule has been laid down by President Judge Keller in Com. v. Marino, 142 Pa. Superior Ct. 327, 334, 16 A. 2d 314: ‘When a crime charged is sought to be sustained wholly by circumstantial evidence the circumstances proved should be such as reasonably and naturally to justify an inference of the guilt of the accused, and should be of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused’s guilt beyond a reasonable doubt.’ ”
The judgment and sentence are affirmed, and it is ordered that the appellant appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with his sentence, or any part of it which had not been performed at the time the appeal was made a supersedeas.
“If, on the trial of any indictment . . . there shall appear to be any variance between the statement of such indictment and the evidence offered in proof thereof ... in the name or description of any person or persons or body politic or corporation therein stated, or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offense charged therein, ... or in the ownership of any property named or • described therein, it shall and may be lawful for the court before whom the trial shall be had, if it shall consider such variance not material to the merits of the ease, and that the defendant-cannot be prejudiced thereby in his defénse upon such -merits, to order such-indictment to be amended, .according .to. the .proof,-'..: v •: . -' '•
Act of June 24, 1939, P. L. 872, §817, as amended by Act of May 21, 1943, P. L. 306, §1, 18 P.S. §4817.