
    Commonwealth v. Greenplate et al.
    
      Larceny — Gwmbling machines — Accessory.
    1. One who aids and abets in the commission of larceny is as guilty as the one rtio took the goods.
    2. A chattel kept for an unlawful purpose, such as a gambling machine, may be he subject of larceny.
    3. One of three men who sat in an automobile, while the other two secured the tolen property, can be convicted of larceny.
    Indictment and conviction for larceny. Rule for a new trial. Q. S. Lancaster Co., April Sess., 1926, No. 34.
    
      George T. Hambright and John E. Malone, for rule.
    
      Paul A. Mueller, John M. Groff and Joseph B. Wissler, District Attorney, ontra.
    Jan. 15, 1927.
   Landis, P. J.,

The defendants were indicted for the larceny f two slot-machines, known as vending machines. Greenplate, Miller and togentogler were convicted and Maggie Raffensburger was acquitted. Miller nd Hogentogler were sentenced and Greenplate filed reasons for a new trial. Two objections are raised by Greenplate. The first is that, as the other wo men went into Shortlidge’s place of business and obtained the machines nd then took them out to the automobile in which Greenplate was sitting, le latter cannot be convicted of the larceny.

As to this proposition, in the recent case of Com. v. Jones, 89 Pa. Superior t. 219, a conviction for illegal transportation of liquor was sustained where oth defendant and the owner and driver of the car in which the liquor was mcealed testified that defendant merely occupied the car as a guest and had o knowledge of the presence of the liquor. In the present case the defend-nts offered no evidence. Harold Strawbridge, a witness for the Common-ealth, testified that the three men were together in Shortlidge’s pool-room ad afterwards in the store; that Miller showed a badge and represented íat he was an officer, which he was not; that he stated he would like to have íe machines; that the three men came in together and Greenplate went out rst. Strawbridge could not say whether or not Greenplate was in when the demand was made for the machines. It was also testified by other witnesses that the machines were in the car with the men when the arrest was made, and that Greenplate was then at the wheel. A witness said that Greenplate pointed out the machines in the store and the other men took them, and when they were placed in the automobile, Greenplate was sitting in it. In the case of Com. v. Jones, 89 Pa. Superior Ct. 219, the Superior Court held that, under the evidence presented, it was proper for the trial judge to charge the jury “that one who aids and abets in the commission of a crime is as guilty as one who actually commits it.” The same with equal force applies to the present case: Greenplate was aiding and assisting the other men in stealing the vending machines by pretending to be officers of the law, and he was properly convicted with them. In Com. v. Lovullo, 85 Pa. Superior Ct. 302, it was decided that, in a trial for larceny, one waiting on the outside can be convicted.

The second proposition is equally without merit. It is asserted that the slot-machines were gambling devices, and were, therefore, not the subject of larceny.

In Com. v. Kaiser, 80 Pa. Superior Ct. 26, it was said that “devices made for gambling and incapable of lawful use are not protected by the ordinary laws relating to personal property, and the owner has no standing to asserf property rights in them.” The question, however, there raised was the righf of the sheriff, under the 59th section of the Act of March 31, 1860, P. L. 398 to seize and destroy such machines, even though the defendant had not beer convicted, and it was held that he could seize them under the act with or with out a warrant. There is, however, no case in this State which I have beei able to find (and counsel for defendant state that their examination is pro ductive of the same result) which decides that a defendant cannot steal i vending machine, even though it be a gambling device. Such a principle would result in carrying ownership to any one who could secure possession b; fair or foul means. The legislature by this act of assembly surely did no intend to bring about such a chaotic condition.

The question has, however, been determined elsewhere. In 36 Corpus Juris pl. 42, page 747, it is said that: “In respect to intoxicating liquors, manufac tured or kept for sale in contravention of prohibition statutes, it has generall; been held that, notwithstanding the statute, such liquors are the subjects o; larceny, and it has even been held that a provision of a statute that there shal be no property rights of any kind whatsoever in any liquors or implement kept or'used for the purpose of violating any provision of the statute does no alter the inherent character of such articles as personal property or chang the rule that their theft is larceny.” On page 802, pi. 234, it is also sat that: “In respect to gambling implements, convictions of grand larceny based upon the market value of such implements for lawful purposes, hav been sustained.”

Mr. Justice Myers, in delivering the opinion of the Supreme Court o Indiana in Smith v. State, 118 N. E. Repr. 964, said: “It has been held tha larceny of gaming cheeks can be committed, although gaming is illegal (Bale v. State, 3 W. Va. 685), and that it is no defence to an indictment for stealin; intoxicating liquors that the liquors stolen were kept for sale in violation o law: State v. May, 20 Iowa, 305; State v. Sego, 161 Iowa, 71; August v. State, 11 Ga. App. 798. In Osborne v. State, 115 Tenn. 717, ... it is hel to be ‘well settled that a chattel kept for an unlawful purpose, such as intoxi eating liquors kept for sale in violation of law, or gambling paraphemali: the possession of which is prohibited, may be the subject of larceny.’ ” Se< also, People v. Ward, 134 Calif. 301; Com. v. Cooper, 130 Mass. 285; Fears v. State, 102 Ga. 274; Averill v. Chadwick, 153 Mass. 171.

I see no grounds on which to sustain the reasons filed on behalf of the defendant, and they are, therefore, overruled, and the rule for a new trial is discharged. Rule discharged. From George Boss Eshleman, Lancaster, Pa.  