35 A.2d 727 | Pa. Super. Ct. | 1943
Argued October 26, 1943. Appellant was tried and convicted of knowingly accepting *284 money out of the earnings of Janette Rogers, alias Irene Strowe, and Chiquita Gomez, women engaged in prostitution. Act of 1939, June 24, P.L. 872 § 515, 18 Pa.C.S.A. § 4515. The appeal challenges the sufficiency of the evidence to sustain the conviction, raises several procedural questions and complains of the adequacy of the court's charge to the jury.
The commonwealth sought to prove its case by showing that the women were prostitutes working in a bawdy house at 521 Pine Street, Easton, and that appellant was the proprietor or had a proprietary interest in the place. The first step — that the girls worked there as prostitutes — was shown by the testimony of the girls themselves corroborated by several witnesses. The evidence of appellant's proprietary interest was largely circumstantial. Obviously, if appellant had a proprietary interest, the commonwealth's case was complete; it has not been, and scarcely could be, argued that the proprietor of such a house must be shown to have actually received the proceeds from the earnings of the prostitutes working there; that fact may be presumed.
We think the evidence was amply sufficient. Betty Kugler, the madam of the bawdy house, lived with appellant, together with several of his relatives, in a large house owned by him on Bushkill Drive in Easton. An effort was made to prove that she merely rented an apartment, but this was largely a pretense. The fact was that she occupied rooms near appellant's and separated only by a bathroom; there was no evidence the house was divided into apartments. There was evidence that after the bawdy house was raided appellant paid off one of the prostitutes and directed another to go to Betty Kugler for her money. Appellant contends this was the only evidence of appellant's proprietorship. There was much more. A confessed panderer, Bassetti, testified that in the latter part of December 1941 he called appellant on the telephone from Wilkes-Barre *285 and asked him if he could use his girl at 521 Pine Street. Appellant told him that he could, whereupon Bassetti brought the girl there, and she worked there until the raid. Apparently Bassetti saw quite a good deal of appellant and on a subsequent occasion, after the girl had been an inmate of the house for several days, a conversation took place in which Bassetti asked appellant whether the girl was satisfactory and appellant replied that she was. There was evidence that at a New Year's Eve party given by appellant there was a conversation in which appellant made the statement that he had been unable to open the house at 521 Pine Street until he had obtained the consent of John Gatto.1 There was evidence that, subsequent to the raid and immediately following their release, the inmates of the house went to appellant's home on Bushkill Drive and that there took place a conversation or argument between appellant and Bassetti from which an inference could very properly be drawn that appellant had put up the bail for his girl and was demanding that he be repaid at least a part of it. In our opinion, these circumstances were sufficient to support the conviction. Appellant's demurrer was properly overruled.
The remaining contentions are likewise without merit. We shall discuss them briefly.
The information recited that defendant aided and abetted and
unlawfully and knowingly accepted money from the proceeds of the earnings of any woman engaged in the practice of prostitution. A motion was made to quash the indictment on the ground that, in supplying the names of the women, it went further than the information and on the further ground that the information charged appellant with being an aider and abetter only. "It is not necessary that an information *286
should charge the crime with the same detail and technical accuracy required in an indictment, if the essential elements of the offense are set forth in terms of common parlance the information will be held to be sufficient." Com. v. Dingman,
After the motion to quash the indictment was denied, counsel for appellant said to the court, "I have just been informed by my client that the defendant desires a change of venue." The motion for continuance and change of venue which followed was based upon allegations that appellant's name "has been spread over the newspapers in this section," that the panel from which the jury was about to be called had heard testimony prejudicial to appellant and that, because of local prejudice, appellant could not receive a fair trial. No effort was made to place upon the record the newspaper accounts and the only specific reference to evidence alleged to have been prejudicial was a statement by counsel that a witness named Russo in Com. v. Gatto,
The next argument is somewhat ingenious. The trial started on two indictments. The additional one, charging pandering, was withdrawn by the commonwealth at the close of its case. The record (the docket entries) merely indicates that the jury were "all duly sworn according to law." We are told in the brief that the jury was sworn only once. It is argued, therefore, that the jury may have been sworn to try the pandering indictment only and that, without having been sworn to try the indictment on which appellant was convicted, the trial was a nullity. That the jury must be sworn is well settled. Com. v. Robinson,
The Act of May 1, 1935, P.L. 127, § 1, 17 Pa.C.S.A. § 1153, empowers the trial judge, when, in his opinion, the trial is likely to be a protracted one, to allow the selection of two additional jurors as alternates where the district attorney or counsel for the defendant, or both, request it. The trial judge, on his own motion, without being requested to do so, directed the selection of two alternates. They were sworn but, although in our opinion it is immaterial, the record indicates they did not participate in the trial and were discharged before the deliberations of the original twelve commenced. Appellant made no objection to the procedure nor did he request the additional peremptory challenge which the Act of 1935 gives him. The contention that the court committed prejudicial error is a complete afterthought. In our opinion, there was no prejudice and the right to the additional challenge was waived by failing to request it. See Com. v.Deyscher,
The court's charge to the jury was fair and comprehensive. At its close, the judge expressly asked counsel whether they wished anything added, whether there was anything overlooked or whether he had misstated anything. There was no response. The only exception was a general one. At the outset, the jury was instructed *289
to disregard the pandering indictment which the commonwealth had withdrawn because of lack of evidence to support it. The complaint is now made that the court did not further direct that only the evidence pertaining to the charge of receipt of bawd money could be considered. In our opinion, there is no evidence of pandering which might, in view of the withdrawal of that charge, be regarded as irrelevant and confusing and that no such instruction was necessary or even advisable. And, although the court did not expressly discuss the circumstantial evidence rule, it affirmed a written point submitted by appellant substantially in the language used in Com. v. Byers,
Appellant objected to the testimony of Betty Kugler on the ground it would tend to incriminate her. It was not contended her testimony was irrelevant or inadmissible on any other ground. Appellant is without standing to complain. Com. v. De Masi,
The judgment is affirmed and defendant is directed to 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 that had not been performed at the time the appeal was made a supersedeas.
