30 A.2d 653 | Pa. Super. Ct. | 1942
Argued December 15, 1942. Indictment charging defendant with fraudulent conversion and with embezzlement. Before SMITH, P.J.
Verdict of guilty, and judgment and sentence on one indictment. Defendant appealed from the judgment of sentence, and also from the "recording of the verdict" in each of the other cases. Defendant was charged with fraudulent conversion in one indictment and with embezzlement in two others. *583 The charges were consolidated for trial before the same jury and defendant was convicted on all of them. He was sentenced only on bill No. 485 February Sessions 1942. Defendant has appealed from the judgment of sentence on that bill and also from the "recording of the verdict" in each of the other two cases, in which sentence was suspended. These latter appeals will be dismissed.
In general an appeal can be taken only after sentence. "After verdict and judgment thereon, then, and not till then, can the alleged error be reviewed here on writ of error": Com. v. Ruth,
Bill 485 charged the defendant with the embezzlement of $1,184.38, the property of Philadelphia Dressed *584 Beef Company on April 26, 1941, while in its employ as a bookkeeper. On the trial defendant offered no evidence but submitted a point for a directed verdict of not guilty which was refused. After verdict defendant moved, both for a new trial and for the "discharge of the defendant," on the ground "that there is no evidence here which would sustain a conviction."
The Act of April 22, 1905, P.L. 286, did not extend the entry of judgment non obstante veredicto to criminal prosecutions. A defendant by presenting a point for binding instructions, questioning the sufficiency of the evidence to support a conviction, may put himself in position for a review of that question by excepting to the refusal to so charge. Com. v. Jones,
Defendant in this case is not entitled to a review of the sufficiency of the evidence, as a matter of right, for the reason that he withdrew his motion for a new trial in the court below. The legal effect of the withdrawal of that motion, in our opinion, was to restrict the scope of the motion to discharge the defendant to that of a motion to arrest the judgment. A motion in arrest of judgment, does not raise the question of the sufficiency of the evidence. The rule is that the judgment can be arrested only for cause appearing on the face of the record consisting of the indictment, the plea and issue and the verdict.Com. v. Long,
However, on the merits, we find evidence sufficient to support a conviction. Defendant was office manager for the company with the duty to keep the books and to take care of "the receivables and handle all the cash that came through the office." Starting with a balance sheet prepared by the defendant showing $3,587.18 cash on hand on December 31, 1939, an accountant prepared a statement from the books of the company showing a shortage in the cash on April 26, 1941, of $8,620.25. The accountant testified that in a discussion with defendant he admitted that there was a shortage but maintained that it was somewhat less in amount; he also admitted that he had taken some of it. There is testimony of another witness that defendant about May 1, 1941, told him that he was short about $6,000 in his accounts. In addition, there is testimony from which the jury could infer the embezzlement of specific amounts within the statutory period of two years prior to February 19, 1942, when the bill was found. Defendant, in March or April, 1941, drew two checks for $40 each payable to himself and cashed them at a time when no salary was due him. These checks were not entered in the check book or on the books of account of the company. For the week beginning April 26, 1941 there were seven items of accounts receivable from customers amounting in all to $231.88 marked as received but none of them appeared in the record of cash receipts of the company.
The date laid in the indictment is not controlling. A variation in proof as to time is immaterial where *586
time is not the essence of the offense. Com. v. Powell,
The judgment on bill No. 485 February Sessions, 1942 is affirmed. The appeals in 484 and 486 February Sessions, 1942, are dismissed.