30 A.2d 168 | Pa. Super. Ct. | 1942
Submitted December 14, 1942. Indictment charging defendant with setting up and being concerned in the conducting and carrying on of a lottery. Before McDONOUGH, P.J., O.C., specially presiding.
Verdict of guilty and judgment and sentence thereon. Defendant appealed. This appeal was submitted on briefs without argument. The motion for a new trial was not argued in the court below, nor was any brief in support of it furnished that court. That fact does not bar an appeal to this court; but it is a circumstance not without significance.
Appellant was indicted, tried and convicted on charges of (1) setting up, and (2) being concerned in the conducting and carrying on, of a form of illegal lottery, known as the `numbers game'. See Com. v. Banks,
He bases his claim to a reversal of `the judgment on our decisions in Com. v. Saeli,
In the present case, the three papers found on the defendant, or which he had dropped in an attempt to get rid of them, were the `banker's' or `backer's' slips or memoranda, which showed the `sales' turned in to the manager or proprietor of the illegal lottery by his `writers', and would not have been in the possession of a mere purchaser of the numbers. The evidence was not overly strong but we are not convinced that it was not sufficient to support the verdict. The defendant did not take the stand and explain his possession of the slips. This was his privilege, and no reference was, or could be, made to his not testifying as a witness. But it is not possible to gauge the effect such a course may have on the jury. The evidence necessary to secure a conviction for conducting a lottery or selling tickets, does not have to be as full or comprehensive as for maintaining a gambling house: Com. v. Zotter,
In the Marino case, no numbers slips were found on that defendant. They were found under the seat of an automobile driven by a co-defendant, Mongo, who was also convicted, but did not appeal. Marino had been riding in the automobile with Mongo for only a few blocks. *138
We find no error in the action of the court in permitting a Pennsylvania Motor Policeman to testify as to the operation of the `numbers game' and the `slips' used to indicate a `sale', one of which is delivered by the `writer' or `salesman' — each of whom has a code number — to the `banker'. See Com. v. Chirico,
The admission in evidence of the `slips' found on the defendant or obviously dropped by him, was not error: Com. v. Stanley,
The assignments of error are overruled. The judgment is affirmed; and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be committed by that court until such time as he has performed the sentence imposed on him, or such part thereof as had not been performed when the appeal was made a supersedeas.