78 Pa. Super. 163 | Pa. Super. Ct. | 1922
Opinion by
Appellant indicted with others, was tried and convicted of felonious entry and larceny. His appeal presents three assignments of error. The first and second complain of the refusal to withdraw a juror because of
The third assignment concerns the refusal to direct the acquittal of appellant, and the single complaint on this branch of the appeal is thus stated by his counsel: “Is the Commonwealth obliged to identify stolen property alleged to have been in the possession of the defendants? What evidence is sufficient to establish the identity of stolen goods riot recovered, but alleged to have been in the possession of the defendants?”
Appellant and Ciamti, Bolan and Gasson were charged in the same indictment with having feloniously entered a freight car of the Philadelphia and Reading Railway Company and with larceny therefrom of merchandise, etc. Three of them, Ciamti, Bolan and Rizzo were tried together.
The jury was justified in finding, and may have found the following facts, from the evidence: Five large packing boxes, separately numbered, containing merchandise, among others, ginghams, seersucker and cambric, were shipped in a certain freight car under seal over the Philadelphia and Reading Railway from Philadelphia for delivery at Wilkes-Barre. The train left Philadelphia at 6:50 p. m. October 27, 1920. A brakeman saw two strangers board the train about three miles out from Philadelphia. About thirteen miles out, the train parted because of some mishap to a drawhead, and while this
Appellant proposed to a witness employed by the railroad company as a detective, that he should intercede for them and have “the railroad company accept restitution in this case”; because “the gang is broken up, and we are done......We are finished” and that if he interceded the witness “would be fixed up,” “would get my [his] share.”
With the jury warranted in finding those facts as to appellant, we return to question quoted concerning the sufficiency of identification of the property, — the only question raised. Why did appellant require intercession with the railroad campany? What would he restore to the company? Which gang was broken up, done or finished? Clearly this contribution by appellant to the evidence, though made through the witness Keyser, leaves no dispute that the goods which were the subject of the larceny were the same goods shipped in the packing boxes in question. The assignment is overruled.
The judgment is affirmed and the record remitted to the court below 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 by that court committed until he had complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.