Commonwealth v. Rizzo , 78 Pa. Super. 163 ( 1922 )

Opinion by

Linn, J.,

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 remarks by tbe prosecuting attorney in his final argument to the jury as appears above in the reporter’s statement. Both sides called a number of witnesses whose evidence was under discussion. Neither the statement “That Rizzo was there is not denied” nor the statement “If you find that James Rizzo had these stolen goods in his possession then it is his duty to explain to you how he came into possession of them” is within section 10 of the Act of May 23, 1887, P. L. 158, prohibiting adverse reference to “neglect or refusal of any defendant, actually upon trial in a criminal court, to offer himself as a witness”: Com. v. Martin, 34 Pa. Superior Ct. 451; Com. v. Chickerella, 251 Pa. 160.

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 was being repaired, tbe conductor saw two strangers standing by the train, one of them assisting in the repair. The train reached Wilkes-Barre next day when it was found that the seals of the car were gone and three of the shipped boxes were missing. A passenger train followed the freight train, and while near Souderton, Montgomery County, beyond the point where the freight train had stopped, and perhaps half an hour behind the freight, the engineer of the passenger train saw “three large cases that are used for shipping of goods” lying along and about twelve feet from the tiack at a point where there was a “very hard upgrade,” and about fifty yards north of Township Line road. Near Souderton while going upgrade three to five miles an hour, the conductor of the freight train saw two men under a bridge and a third running towards them. At Bethlehem the engineer of the passenger train reported seeing the boxes. The next morning a section gang was sent out to investigate and found that the boxes had been removed. Following footprints, they discovered the broken boxes in a culvert under the railroad, the contents of the boxes missing. At a point on the public road, and about 300 yards from the railroad, at about 9 a. m. they saw two automobile trucks and a touring car. They went to these trucks and found five or six men there endeavoring to release a truck that was stuck in a ditch. Appellant Rizzo was “there around the trucks.” The trucks bore license tags issued to Ciamti, Gasson and one Lipton. Lipton was employed about 6 a. m. on October 28th by Ciamti to go from Philadelphia to the point in question ' and to tow Ciamti’s truck back or to bring in its load consisting of “something like dry goods,” some “wrapped in paper.” The goods were also described as something like cotton piece goods. They were transferred from Ciamti’s truck to Lipton’s and by him brought to 1720 Ridge Avenue, Philadelphia, “Rolan’s place,” where they were carried in and “the man in the store packed the bundles under the stairway.” The record does not disclose what became of them. Some bundles were wrapped in paper and others were unwrapped; they were “plain goods, dry goods”; “something like this (witness indicates his shirt) and other kinds of goods.”

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.