Commonwealth v. Abel , 1924 Pa. Super. LEXIS 223 ( 1924 )

Argued October 13, 1924. Appellant was convicted of manufacturing and of possessing intoxicating liquor, in violation of the Act of March 27, 1923, P.L. 34. From the disputed evidence in the case the jury may have found the following facts, which would support the verdict: Appellant resided on a house boat moored in the Monongahela River, 30 feet from the shore in the Borough of Charleroi. With a warrant for his arrest and also a search warrant, several officers entered the house boat and arrested appellant. When arrested, appellant was sitting at a table on which there was a glass of whiskey. A flat boat, also described as a fuel boat, about 20 feet long, was moored to the houseboat and either belonged to or was used by appellant. While one of the officers detained appellant on the houseboat, the others searched both boats and found on the flat boat, 3 gallon jugs containing whiskey and a copper boiler which if equipped with a coil could be used as a still. Appellant had thrown the coil into the river the day before. Appellant was taken to a magistrate's office and it is said that there he pleaded guilty. Before indictment he filed a petition in the quarter sessions, averring that the copper boiler belonged to him and asked that it be delivered to him and that the district attorney be restrained from using it in the proposed prosecution. While some of those facts were denied by evidence offered on behalf of appellant, we are bound by the conclusion of the jury, who apparently did not believe the denials.

The learned counsel for appellant presents many assignments of error, which we have considered in the light of his argument; those to the charge of the court and to extracts therefrom are without foundation in their relation to the evidence, the effect of which we have briefly but sufficiently indicated. He complains of the refusal to quash the indictment, asserting that it was found by the grand jury before the court disposed of appellant's petition to restrain the district attorney from using the copper boiler as evidence, and to require its return to appellant. In the circumstances, already outlined, it is obvious that the course pursued by the court was right: Com. v. Grasse; 80 Pa. Super. 480; Com. v. O'Malley, 81 Pa. Super. 100. We find no merit in the assignments complaining of rulings on evidence. Appellant contends that as the boat was moored in a navigable stream, the federal and not the local law was applicable; that contention is without foundation: Respublica v. Davison, 4 Yeates 125. The only remaining complaint to be noticed is that sentence is excessive; appellant was sentenced to pay the costs of the prosecution, a fine of $300, and undergo imprisonment in the Allegheny County workhouse for a period of eight months. The statute provides a maximum of three years. Counsel for appellant suggests that as this was appellant's first offense, he received a heavier sentence than is usually administered to first offenders in Washington County; as the sentence is authorized by statute we may not interfere.

Judgment affirmed.