Opinion
December 10, 1928.
December 11, 1928.
Criminal law — Unlawful possession of intoxicating liquor — Aiding and abetting in the possession of intoxicating liquor — Act of March 27, 1923, P.L. 34.
In the trial of an indictment, charging defendant with possessing intoxicating liquor in violation of the Act of March 27, 1923, P.L. 34, a conviction will be sustained, where the evidence justified a finding that defendant was in possession and control of liquor found in the bar-room or aided, assisted and abetted the lessee of the barroom in the possession and control of the beverage.
New trial — After-discovered evidence — Cumulative evidence — Necessity of averment that evidence could not have been obtained at the trial.
A motion for a new trial, on the ground of after-discovered evidence, is properly refused, where the alleged after-discovered evidence is merely cumulative and there is no averment, proof or offer to prove that it could not have been obtained at the trial by the use of reasonable diligence.
Appeal No. 143, April T., 1929, by defendant from judgment of Q.S., Westmoreland County, February T., 1928, No. 145, in the case of Commonwealth of Pennsylvania v. Edward Walker, Jr.
Before TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Indictment for unlawful possession of intoxicating liquor. Before WHITTEN, J.
The facts are stated in the following opinion of the court below:
February 9, 1928, the grand jury returned a true bill upon the indictment in the above case, charging both defendants with the unlawful possession of intoxicating liquor in a certain hotel at 816 Third Avenue, New Kensington, Pa., on December 7, 1927.
February 16, 1928, at the request of the defendants, the court continued the trial of the case until May term of said court, 1928.
May 11, 1928, the jury impanelled in the case found both defendants guilty, and recommended the defendant, George Lang, to the mercy of the court. May 12, 1928, the defendants filed a motion for a new trial, alleging that the verdict was against the evidence, against the weight of the evidence and against the law and the charge of the court.
June 21, 1928, the defendants filed additional reasons in support of their motion for a new trial, to wit:
An affidavit by defendants' counsel that since the trial one Jacob Goldberg had stated to him that on May 2, 1927, he (Goldberg) executed to one, Thomas R. Hall, a written lease for the premises upon which said intoxicating liquor was found; that thereafter Thomas R. Hall paid the rental therefor and took exclusive possession and control thereof, and that subsequent to May 2, 1927, he had never seen either of the defendants upon the said premises.
Defendants' counsel also filed an affidavit that, since the verdict was rendered, one Bert Krieger, had told him that in November, 1927, he had employed Edward Walker, Jr., to work for him at his Service Station, and that said defendant was so employed until May 1, 1928, that during the period aforesaid, he never knew Edward Walker, Jr., was interested in any other business; that he paid Edward Walker, Jr., $30 per month for such service — and that Goldberg and Krieger would so testify if a new trial were granted.
In other words, such affidavits filed June 21, 1928, were intended as the basis for a new trial upon the ground of after-discovered evidence. However, the defendants did not aver, or prove, or offer to prove, that such alleged after-discovered evidence could not have been obtained at the trial by the exercise of reasonable diligence.
On the other hand, at the trial the defendants produced the said written lease, dated May 2, 1927, from Goldberg to Hall; and the said Hall testified that the said lease had been duly executed and delivered to him by Goldberg. The defendants also produced and proved the execution of an alleged bill of sale by Edward Walker, Jr., to Thomas R. Hall, conveying the furniture, etc., in the said hotel to Hall.
At the trial the defendants admitted that on the 7th of December, 1927, they were both in the bar room in the hotel at No. 816 Third Avenue, New Kensington, Pa., where the officers found the intoxicating liquor.
The defendant, Lang, admitted that he was behind the bar where he had been drinking liquor.
Walker admitted that when the officer knocked on the door of the bar room for admission, he called to another occupant therein to "empty that stuff," but declared that he thereby referred only to the bottles of beer on the bar. Walker also admitted that after the officers came he broke the bottles containing the beer, but said the breaking was not intentional, but was accidental on his part. The officers testified that when they knocked on the door the defendant Walker called to another inmate "Dump the liquor, George, dump the liquor."
Walker admitted that when asked by the officer for the key to the bar room door, he first denied that he had the key, and that later he gave to the officer the key whereby the door was unlocked.
Carl C. Gressler, a witness called by the Commonwealth, described the hotel where the intoxicating liquor was found thus:
"A. There is something I don't understand about that hotel that I want to explain, about the equipment.
Q. Go ahead, what is the equipment of the hotel?
A. They have a system that when you come in from the street there is something on the door when it opens it rings a bell on the back door, and then they have a hole to look out, if a man don't look good he don't get in.
Q. What kind of an opening is there?
A. Big enough to stick your head through and take a peep.
Q. Is that the way you get into the bar room?
A. Before you get in, yes.
Q. This is a sort of a peep hole?
A. Just big enough to stick your head through.
The defendant, Walker, referring to the equipment of the bar room, testified as follows:
"Q. There is a bar there, isn't there?
A. Yes.
Q. And a drain board back of it, and this basin — whatever they call it?
A. Yes.
Q. How long is that bar?
A. Seventy feet.
Q. There is a spigot there where you had beer on tap, is there?
A. Yes.
Q. Do you know whether or not the front door of that place is always locked.
A. I think it is.
Q. Nobody can get in unless you see who they are?
A. Nobody comes in there.
Q. How do they get in?
A. At the side entrance.
Q. They have to push a bell to get in?
A. Not always; knock sometimes."
The officers testified that they found behind the bar and under the drain-board adjacent thereto three different bottles or containers containing liquid; and the chemist testified that such liquids contained six-tenths of one per cent 4.35 and 7.35 per cent respectively of alcohol by volume.
The proofs fully justified the jury in finding that the defendants were in possession and control of the intoxicating liquor found in the said bar room. True, the defendants offered proofs that on December 7, 1927, the lessee of the bar room was Thomas R. Hall. However, the proofs — including the testimony of the defendants — clearly justified the jury in concluding that, while Hall may have been the lessee of the bar room in question, yet the defendants were in possession and control of the liquor therein, or that they were abetting, aiding and assisting Hall in the possession and control of such intoxicating liquor.
Our conclusion is that the verdict was neither against the evidence, the weight of the evidence, nor against the law or the charge of the court.
The court is also of the opinion that there is no basis for the granting of a new trial on the ground of after-discovered evidence.
"To entitle a defendant to a new trial on this ground," (after-discovered evidence) "the evidence must have been discovered since the trial, and be such as could not have been obtained at the trial by the use of reasonable diligence; it must not be simply corroborative or cumulative, or merely to impeach the credibility of the witness, and it must be such as to likely result in a different verdict if a new trial were granted": Commonwealth v. Mellon, 81 Pa. Super. 20-25. See also Commonwealth v. Brady, 76 Pa. Super. 488.
As above stated, in the instant case there was neither averment, nor proof, nor offer of proof that the alleged after-discovered evidence could not, by the exercise of reasonable diligence, have been discovered and produced at the trial.
Moreover, it is clear that such alleged after-discovered evidence would be cumulative only and that it is improbable that such proofs would produce a different verdict in a new trial of the case.
The lease dated May 2, 1927, from Goldberg to Hall, was identified at the trial by defendants' witness Hall and the lease was offered in evidence. Clearly the proposed testimony of Goldberg in relation thereto would be cumulative only. Moreover, the controlling question was not, who was the lessee of the bar room? The real issue was whether the defendants or either of them were in possession of the liquor found in the said bar room on the 7th of December, 1927?
Nor is it probable that the proposed testimony of Krieger — that Walker had been in his (Krieger's) employ from May 2, 1927, until May 1, 1928, and that he, Krieger, never knew that Walker was engaged in any other business during that period — would produce a different verdict.
It appears from the proofs that previous to the commission of the offense charged in this indictment, the defendant, Walker, was previously convicted three times upon indictments charging unlawful possession, furnishing, or selling intoxicating liquor in the same hotel.
After carefully reading the testimony and the charge of the court we are convinced that the defendants were afforded a fair trial; that the verdict was clearly justified by the proofs; and that a new trial should be refused.
Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.
Errors assigned were the refusal of defendant's motion for a new trial and the sentence of the court.
Vincent R. Smith, of Smith Smith, P.K. Shaner, Wm. M. Kahanowitz and P.K. McCormick, for appellant.
John R. Keister, District Attorney, and with him Benjamin H. Thompson, Assistant District Attorney, for appellee.
Argued December 10, 1928.
Defendant was convicted of the unlawful possession of intoxicating liquor in violation of the Act of March 27, 1923, P.L. 34. He appeals and here asserts that the evidence was insufficient to convict. We affirm the judgment for the reasons stated in the opinion of the court below.