97 Pa. Super. 169 | Pa. Super. Ct. | 1929
Argued October 1, 1929. In August, 1928, the defendant, Edmond Flick, was cashier of the Citizens Bank of Pleasantville, Pennsylvania. Among the securities of the bank under his control was a note of his brother-in-law, Charles E. Weaver, for $1,230, which he had discounted and used the proceeds to purchase 100 shares of Listie Coal Company stock, the certificate for which stood in his, Flick's, name. The board of directors took exception to the loan and Flick replaced the Weaver note with a note for the same amount of Forest B. Kuhns, dated August 17, 1928, and payable sixty days after date, which was satisfactory to the board.
In the early morning of September 24, 1928, before dawn, the bank building was found to be on fire, and it was discovered that the bank safe had been opened, money to the amount of $3,212 stolen, securities removed, and the records of the bank saturated with gasoline and partially burned and destroyed. A metal box containing the notes bought or discounted by the bank, which had been in the safe, was missing and later was found locked, with its contents water-soaked but intact, in Oil Creek.
A colored man named Watson, who had been janitor of the Oil City National Bank while Flick was employed there as a clerk, was arrested, and confessed, implicating Flick as the instigator of the crime. He said that Flick, in inducing him to rob and burn the *171 bank and its records, etc., had said, inter alia, that there was a shortage in the bank of about $5,000, and that the metal box contained some notes which were "not right," and that he wanted it and the bank records destroyed. He told the officers where he had thrown the box. It was recovered, opened and among its contents, inter alia, were found the Kuhns note and notes purporting to be signed by J.L. Thompson and T.E. Williamson. Flick was arrested and indicted for felonious entry and the larceny of $3,212, money of the bank. When arrested there was found on him a note purporting to be signed by one Benedict, and the Weaver note for $1,230 above referred to, and also a loose leaf, apparently from the bank books, showing this note transaction. Watson was separately indicted for arson, felonious entry and larceny, pleaded guilty and was sentenced to the penitentiary. Flick was tried on the above indictments and acquitted.
Kuhns, Thompson and Williamson denied having signed the notes found in the metal box among the securities of the bank, and Benedict repudiated the signature to the note found on Flick's person, which had not been discounted. All of these notes were admittedly filled out in the handwriting of Flick.
The county detective made complaint against Flick charging him with forging the signature of Forest B. Kuhns to the $1,230 note above mentioned. He was indicted, tried and convicted, and it is from the judgment of sentence following this conviction that the present appeal is taken.
Five grounds for appeal are assigned.
(1) Defendant objected to the admission in evidence of any testimony of Watson relative to his conversation with Flick prior to the burning and robbing of the bank building, on the ground that Flick's subsequent acquittal on the indictment charging felonious entry and larceny was a conclusive adjudication on *172
that subject and required a direction that Watson's evidence be disregarded as in conflict with the verdict of the jury. The court ruled, and rightly so in our opinion, that the verdict of the jury in the prior trial conclusively established that Flick had not been guilty of the charges on which he had been tried, viz., the felonious entry of the bank building and the larceny of the money taken therefrom; but that it did not render incompetent or inadmissible the testimony of Watson as to the admissions of Flick relating to the shortage of his accounts and the fraudulent character of some of the notes in the metal box, and his desire to have it destroyed. We said in Com. v. Leib,
(2) Defendant objected to any evidence being received denying the genuineness of the signatures to the Thompson, Williamson and Benedict notes, and showing them to be simulated and forgeries. The evidence was not offered to secure a conviction by proof of other and distinct forgeries, but for the purpose of showing guilty knowledge, intent, system and design. In Underhill on Criminal Evidence (3d Ed.) Sec. 629 (p. 867) the text writer says: "Evidence of similar forgeries, or of the possession of forged papers about the same time is admissible to show a uniform course of acting from which guilty knowledge and criminal intent may be inferred." The ruling of the court below is sustained by the decisions of the Supreme Court, *175
inter alia, in Com. v. Bell,
(3) Kuhns had testified for the Commonwealth that while Flick, the defendant, was in jail in Franklin, shortly after his first arrest, he sent another brother-in-law, Roberts, to Kuhns with a note, as follows: "Forest: There is a note of $1,250 in your name at Pleasantville. Please take care of it and I will explain when I see you. Keep this to yourself. (Signed) Ed. Flick."
On the trial the defendant offered to prove by W.E. James that he was on the defendant's bond in the felonious entry and larceny case; that sometime after he became bound he went to the defendant with the sheriff for the purpose of surrendering him; that the defendant said in substance "Will you go up and see Forest Kuhns before you carry out your intentions?" that the witness and the defendant Flick went to Mr. Kuhns, met him personally, and that in the presence of the witness defendant said to Mr. Kuhns in substance that he was not trying to put anything over on Mr. James, but that Forest (referring to Mr. Kuhns) knew all about this note, or knew all about this transaction, or words to that effect, and that Mr. Kuhns *176 made no reply. The court sustained the Commonwealth's objection, and refused to admit the evidence. Leaving out of consideration that in previous attempts to introduce the evidence the offer also stated that Kuhns had told James that the note was a forgery, there is nothing in the offer which amounts to an admission by Kuhns that he authorized Flick to sign his name to the note. It is entirely consistent with his testimony for the Commonwealth. The statement was cleverly contrived and might well have been understood by Kuhns to refer to the letter above quoted. There was certainly in it no distinct claim that Kuhns had authorized Flick to sign his name to the note and nothing that contradicted or rebutted the former's testimony. Kuhns was not the prosecutor; he was merely a witness for the Commonwealth; and the offer did not amount to a contradiction or rebuttal of his evidence. It was not like the case where one accused of crime is held bound to speak or rest under imputation of guilt if he keeps silent.
(4) We do not consider the charge as a whole to have been misleading and inadequate. On the contrary we think that it very fairly and fully defined the issues and instructed the jury on the law applicable to the evidence in the case. No good would be served by further dwelling on this point. The matters with respect to which appellant claims the jury were misled and confused by the court's charge, are chiefly those complained of above in (1) and (2), as to which we agree with the court's action.
(5) Error is also assigned to the charge of the court with respect to instructions on the weight to be given the greater number of witnesses if of equal credibility. This is an example of the unfairness of choosing an isolated sentence or extract from a charge and attempting to give it a meaning contrary to the thought expressed in the charge as a whole. At the conclusion of *177
the general charge counsel for the Commonwealth asked the court to instruct the jury that they might take into consideration the numbers testifying on either side, having regard, of course, to the credibility of each witness, whereupon the court explained the subject in the exact language used by the Supreme Court in the case of Braunschweiger et al. v. Waits,
The assignments of error are all overruled. The judgment is affirmed and it is ordered that the defendant appear in the court below 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 at the time the appeal in this case was made a supersedeas.