Thomas J. Haines, the appellant, a detective in the Township of Upper Darby, was indicted on four bills [p. 167] charging: (1) bookmaking, No. 382 June Sessions, 1940; (2) aiding and abetting bookmaking, No. 383 June Sessions, 1940; (3) malfeasance, misfeasance, and nonfeasance in office, No. 384 June Sessions, 1940; and (4) conspiring with John J. McGuckin and Howard W. Stanton to engage in bookmaking and to set up and establish a gaming house, No. 432 June Sessions, 1940.
. . . . A trial was had and the defendant was convicted on all four bills. He was sentenced on each of two bills, malfeasance, misfeasance, and nonfeasance in office (No. 384), and conspiracy (No. 432), to imprisonment from one to two years and a fine of $500, both sentences to run concurrently, and sentence was suspended on bills Nos. 382 and 383.
The commonwealth produced evidence, which we summarize as follows. On May 1, 1940, about 3:30 p.m., [p. 168] Francis X. Kelly, a Corporal of the Pennsylvania Motor Police, and his associates raided a bookmaking establishment, which had the appearance of a residence, located at No. 20 Kent Road in Upper Darby Township. No response having been made to the ringing of the front doorbell, an entrance to the premises was gained through the cellar. When Kelly reached the second floor he found many indications that bookmaking was being conducted. Stanton and McGuckin were taken into custody by Kelly and turned over to other officers who took them from the premises. Kelly remained in charge of the house and the equipment until about 5:30 p. m. In the meantime information was being transmitted by various telephones that had been in operation as to "odds", "horses" and other information concerning racing. At 4:28 p. m., after Stanton and McGuckin had been taken away, the defendant called on the phone and said: "Hey, Johnny, --Tommy Haines. Better watch yourself. They are up around the Clock." When Kelly asked "Who?" the defendant answered: "You know who--the State Cops." Kelly then informed him to whom he was speaking. Haines asked Kelly what he was doing down there and Kelly replied that he was making a raid.
Between 5:30 and 6 p.m., the same day, the gambling paraphernalia was placed in a truck and Kelly, with other officers, went to a taproom known as the Clock, where other state policemen were bringing out gambling apparatus taken in a raid they had conducted on the third floor of the building in which the Clock was located. Haines, who was standing in the doorway of the taproom, called Kelly over and said: "Don't get yourself in this too deep," and then without further explanation walked away.
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. . . . It was not until after a raid had occurred, the bookmaking abated, and the operators arrested and taken away, that the belated attempt was made to give warning. That did not constitute an act of aiding or abetting bookmaking that had been stopped, nor was it active participation in a bookmaking establishment that was then in possession of the police officer of the commonwealth. He could not aid or assist in the criminal conduct that had then ceased. He was too late to help them, but not to save himself on this charge. Nor was the proof sufficient to establish a conspiracy. No evidence was offered of any collaboration or participation tending to establish adequately an unlawful combination. See Commonwealth [p. 170] v. Benz, 318 Pa. 465, 467, 468, 178 A. 390, and Commonwealth v. Rosen et al., 141 Pa.Super. 272, 278, 279, 14 A.2d 833. There is ample evidence to support the conclusion that Haines knew that McGuckin and Stanton were operating as bookmakers in this house, but mere knowledge or even approval, of this criminal conduct, in the absence of proof of cooperation, did not constitute conspiracy. Commonwealth v. Perri, 97 Pa. Super. 78, 89.
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The evidence to support indictment No. 384, charging malfeasance, misfeasance, and nonfeasance in office, met the legal requirements and in our judgment was for the jury's consideration.
The defendant, as a detective, was required to investigate any and all complaints of violation of the criminal law occurring in Upper Darby Township. The commonwealth showed that he, instead of being loyal and honest in discharging the duties of his office by detecting crime and aiding in the punishment of the offenders, was violating his official obligations and attempting to conceal crime and protect violators of the law. His actions showed a wilfull dereliction and breach of his duties. See Commonwealth v. Kirk, 141 Pa.Super. 123, 145, 14 A.2d 914.
The appellant seeks to evade punishment by arguing that he was taking only a preliminary step toward aiding those who were subsequently convicted of a criminal offense; that as these criminals were in custody before his message reached them, his act was unavailing and did not constitute in a legal sense an attempt to aid and abet McGuckin and Stanton to evade arrest and prosecution. With that argument we disagree.
[p. 171] "An attempt, in general, is an overt act done in pursuance of an intent to do a specific thing; tending to the end, but falling short of complete accomplishment of it. In law the definition must have this further qualification,--that the overt act must be sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution." Commonwealth v. Eagan, 190 Pa. 10, 21, 42 A. 374, 377. There are two essential elements involved in an indictable attempt; first, the intent to commit a crime, and second, an ineffectual act done toward its commission [Commonwealth v. Crow, 303 Pa. 91, 98, 154 A. 283, 286; Commonwealth v. Johnson, 312 Pa. 140, 148, 167 A. 344, 89 A.L.R. 333] both of which were shown in this case. If the message had been a few hours earlier it would probably have accomplished its purpose.
The appellant's act, although unsuccessful, amply justified the verdict of guilty of malfeasance, misfeasance, and nonfeasance in office, by attempting to aid and abet McGuckin and Stanton to escape and evade arrest and prosecution for bookmaking.
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The judgments entered on indictments No. 382, bookmaking, No. 383, aiding and abetting bookmaking, and No. 432, conspiracy, are reversed. Judgment and sentence entered on No. 384, charging the defendant, as a detective, with malfeasance, misfeasance, and nonfeasance in office, are affirmed.
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