95 Pa. Super. 496 | Pa. Super. Ct. | 1928
Argued October 22, 1928. Eight indictments were found in the Court of Quarter Sessions of Philadelphia County, in each of which Carl Bonnem and his father, Edward Bonnem, were charged with having conspired with each other and with "divers other evil disposed persons" to cheat and defraud the respective prosecutors named in the several indictments out of amounts varying in the different cases from $1,900 to $3,000 by fraudulently inducing them to invest these sums in various butcher shops and retail meat businesses, to be conducted, in partnership with the Bonnems, at specified locations in the city.
When the cases were called for trial on April 20, 1927, Carl Bonnem, the son, alone appeared and it was represented to the trial judge that Edward Bonnem was physically unable to go to trial. The Commonwealth, having been advised by a physician of its selection sent to examine the father that it would be dangerous and inadvisable to compel his appearance, elected to proceed to trial against Carl Bonnem. The legal effect of this procedure, in so far as the questions here involved are concerned, was the same as it Edward Bonnem had been granted a severance. Carl Bonnem was convicted upon seven indictments; his motions in arrest of judgment and for a new trial were denied; sentence was pronounced at the first number in the court below; and he has taken an appeal in each case. They were heard together and will be disposed of in one opinion. When these appeals *499 were called for argument at the October T., 1927, of this court, and we were advised that Edward Bonnem had not then been tried, we suggested that they were not ready for final adjudication in view of the anomalous situation which might arise if Edward Bonnem should be acquitted and it should appear from the record that the two Bonnems were the only persons implicated in the alleged conspiracy. Upon application of counsel for appellant the argument was continued pending the trial of the father. The suggested possibility no longer exists; it appears from a stipulation of counsel filed in this court that Edward Bonnem died September 18, 1928. At the continued argument at this term it was contended by the learned counsel for Carl Bonnem, that, entirely aside from the merits, he is entitled to have the judgment against him reversed and to be discharged from custody by reason of the death of Edward Bonnem before trial, because, as they contend, there can be no lawful sentence under any of these indictments for the conspiracy therein charged unless at least two persons have been convicted. We therefore now have two questions for consideration and disposition: one purely technical and the other on the merits.
1. In support of their position on the first question they rely chiefly on our case of Com. v. Faulknier et al.,
In Com. v. Stambaugh,
We, therefore, conclude that the death of Edward Bonnem, shown by the record to have been a confederate of appellant, can have no effect upon the judgment appealed from, if it is otherwise valid.
2. Upon the merits twelve assignments of error have been filed but a detailed discussion of them is unnecessary as they may properly be disposed of by considering the subject matter of each group. The principal contention is that the indictment does not properly charge the offense and the evidence is not sufficient to sustain the verdicts. The indictments are drawn substantially in the language of section 128 of the Act of March 31, 1860, P.L. 412, and we think sufficiently charge the defendants with a conspiracy to cheat and defraud the respective prosecutors: Com. v. Romesburg,
Having related that the store was located at Glenside and that it was fitted up by the defendants as a new store, the witness gave this account of the termination of the partnership: "A. We went up there just before it opened. It opened up on January 22d. Q. He was going to teach you the business, I suppose? A. He [appellant] promised me he would be up there with me, and work right alongside of me and break me in and teach me the butcher business. Q. Who was going to buy the meats? A. He was going to buy the meats and look after things in general. Q. How long did you stay in the store? A. We were there, I guess, just about 10 days. Q. What happened at the end of 10 days? A. He just came around, and he says, `Well, it looks pretty bad. If you care about putting in any more money, we've got a very good location further up.' He said I could have that if I put in another $500. He explained to me that he could get another location where he was quite sure the business would go better. Q. Further up? A. Yes, he would have one further up for me. Q. By the way, then what happened? A. So he said, `Well, we might as well close.' In fact, every time him and his father came around they would throw up their hands and say, `We've got to close this place, we've got to close this place.' That's all you would hear. So, at last he says, `We can take a statement of the stock on hand at the present time,' and, in fact, he wrote it out and I signed it. It was the condition of the stock. I figured he would get in touch with me or make some arrangement about where we would dispose of the fixtures, or have a split of some kind that I would get something out of the wreck. Q. Did you ever get a nickel out of it? A. I got two weeks' pay, I think, *506
$50 a week. Q. Did you ever get any more of your $2,500 back? A. No, I never seen any more." A written partnership agreement under date of January 4, 1926, was signed by Howard and appellant, providing in substance that Howard should have a half interest in the store for $2,000, that the partnership should continue for the term of one year, and containing other details not material to the present inquiry. In addition to the prosecutors, the Commonwealth called several persons who had answered the same, or similar, advertisement and entered into partnerships with the defendants, and offered to show that they had been defrauded by the same methods as those described by the prosecutors. This evidence was admitted over the objection of counsel for appellant for the purpose, as stated by the learned trial judge, of showing "a systematic scheme to defraud, and the carrying out of that scheme in other cases, for the purpose of rebutting any defense of the absence of criminal intent." It has been repeatedly held that such evidence is admissible for the purpose indicated: Com. v. Pugliese,
Complaint is also made of remarks of the assistant district attorney in characterizing, during the taking of testimony, the acquaintance of one of the witnesses with the defendants as "unfortunate," and in referring to the last witness called as the "last victim." These remarks should not have been made, but the trial judge immediately instructed the jury to pay no attention to them and warned the Commonwealth's representative against a repetition. We are not persuaded that they were sufficient ground for the withdrawal of a juror: Com. v. Beattie,
The judgment is affirmed and the record is remitted to the court below and it is ordered that the appellant appear in that court at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed when the appeal in this case was made a supersedeas.