79 Pa. Super. 485 | Pa. Super. Ct. | 1922
Opinion by
The defendant was convicted upon an indictment containing three counts, the first charging him and one A. M. Byrne with conspiring and agreeing together and with other persons whose names were unknown to cheat and defraud the Pennsylvania Railroad Company out of moneys and their property; the second charging them with receiving. and unlawfully and fraudulently withholding and converting and applying to their use certain
The Pennsylvania Railroad Company discovered that at its passenger station in Pittsburgh an abnormal number of transportation tickets were being presented for redemption. An investigation which followed resulted in the arrest of a number of Pullman conductors and other persons on charges similar to those in the present indictment. Among those arrested were A. M. Byrne and the defendant, who, for some years prior to the month of February, 1921,had been a bartender at theHotel Griese situated about a square and a half from the Union Station of the Pennsylvania Railroad Company at Pittsburgh. This hotel was much frequented by railroad men and employees who worked at the Union Station. Byrne was a Pullman conductor operating on the line of the Pennsylvania Railroad Company between New York and St. Louis. During the year 1920 and January of 1921, he made a practice of failing to cancel certain transportation tickets taken up during his trips, and sent them to the defendant, Dwyer, who had them redeemed by certain employees in the ticket office of the railroad company, notably by R. F. Campbell, a ticket clerk, who redeemed the tickets, both at the station and at the Hotel Griese. There was proof of the sales of particular tickets, which were traced by their numbers into the hands of Byrne, who did not cancel them but turned them over to defendant who presented them to the railroad company for redemption. These tickets were received by defendant through the mail in envelopes addressed to J. H. Brooks at the Hotel Griese. Defendant presented them to the railroad company for redemption and sent a part of the proceeds to Byrne. There was
The assignments of error are sixteen. .The first assignment complains of the overruling ‘by the trial judge of a motion made by defendant’s counsel at the close of the testimony that the court take the case from the jury and give binding instructions for defendant, for the reason that the evidence disclosed that the person who made the information in the case had no knowledge or information as a basis upon which the complaint could be founded, and for the additional reason that the indictment showed that the only persons called before the grand jury were the witnesses, McGinley and Campbell; that the evidence adduced from McGinley and Campbell at the trial showed that any evidence presented by them before the grand jury must have been hearsay; that neither of them had any knowledge of any conspiracy between Byrne and the defendant, Dwyer; that therefore the bill of indictment was improperly obtained. If the defendant desired to question the validity of the indictment for such reasons, it should have been done by a motion to quash. Such a motion is usually made before plea entered and must be so made where the defect appears on the face of the indictment. But in Pennsylvania an indictment may be quashed for matters not appearing upon the face of the record: Com. v. Bradney, 126 Pa. 199.
The second, third, fourth and fifth assignments of error challenge the answers of the trial judge to defendant’s second, third, fourth and fifth points presented for charge. These assignments are defective because they are not based.upon exceptions taken in the court below:
The sixth assignment of error is based upon an exception to the order of the eourt dismissing the motion for a new trial. All of the reasons filed in support of the motion for a new trial charged error below in the admission of testimony. The second, third and fourth reasons are the subject of specific assignments which will be referred to later. The first reason complained of the admission of alleged telephone conversations between the Commonwealth’s witnesses, Cooley and Baer, and defendant. No exception was taken to the admission of the testimony of Cooley. Baer’s testimony was admitted over an objection urging that the testimony was not rebuttal, but part of the Commonwealth’s case in chief. The admission of the testimony in rebutt.al was within the discretion of the trial judge. For this reason and the reasons which will be stated upon the assignments specifically passing upon the other reasons supporting the motion for a new trial, we think there was no abuse of discretion in overruling the motion for a new trial.
The seventh assignment challenges the discharge of the motion for arrest of judgment. The reasons set out in support thereof are identical with the reasons assigned in support of the motion which was the subject of the first assignment of error.
The eighth assignment charged error in pronouncing judgment of sentence. A conviction on any one of the counts in the indictment would warrant the sentence.
The ninth, tenth and twelfth assignments complain of overruling of defendant’s objection to the admission of, and the motion to strike out, the testimony of the witness R. F. Campbell, the agent in the ticket office of the Pennsylvania station at Pittsburgh, who was called to prove, that certain tickets-, which had. been collected from passengers by- Byrne, were presented by defendant to the witnesses for redemption, and that defendant received the money for the tickets. In order to make the
The eleventh assignment charges error in the admission of testimony as to transactions other than those set out in the indictment and with persons other than the codefendant, Byrne. The indictment was found at the April sessions of 1921. The first count charged that A. M. Byrne and Joseph Dwyer did, on the 30th day of October, 1920, falsely and maliciously conspire together, and with other persons whose names were unknown, to cheat and defraud the Pennsylvania Railroad Company. In laying the time, any date within the statutory period and prior to the finding of the indictment might be fixed, and the averment would be supported by proof that the offense occurred at another date within that time. It is not necessary to prove the time as laid, except when time enters into the nature of the offense: Com. v. Nailor, 29 Superior Ct. 271. The Commonwealth had the right to offer testimony showing other offenses where the evidence tends to establish system, guilty knowledge, design or plan: Com. v. Shields, 50 Pa. Superior Ct. 1; Com. v. Elias and Jones, 76 Pa. Superior Ct. 576; Com. v. Rink, 71 Pa. Superior Ct. 579.
The thirteenth assignment charges error in that part of the charge of the court below in which he referred to Byrne as one “who was, [or it is alleged was] a coconspirer or accomplice.” This was harmless error, as, under the whole charge and the testimony presented, a jury could not have understood that Byrne was other than an admitted accomplice. The assignment is overruled.
The fourteenth assignment complains of that part of the charge in which the trial judge explained the meaning of the words “weight of the evidence.” A careful review of this part of the charge convinces us that the instruction was free from error.
The fifteenth assignment of error challenges that part of the charge which related to the weight and effect to be
By the sixteenth assignment of error, in which the charge as a whole is brought up for review, it is urged that the charge was prejudicial to the defendant. Careful consideration of it has led us to the conclusion that it is not subject to this imputation. The court did not attempt to review the testimony and told the jury that he did not intend so to do. We think that the issues were fairly presented to the jury, and defendant has no just cause for complaint.
All of the assignments of error are overruled, the judgment is affirmed, the record is remitted to the court below, and it is ordered that the defendant appear in that court at such time as he may there be 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 at the time this appeal was made a supersedeas.