Commonwealth v. Harris

168 Pa. 619 | Pa. | 1895

Opinion by

Mr. Justice Mitchell,

The law was correctly given to the jury by the learned judge below. The turning point in the case was the capacity in which the appellant received the grapes, whether as consignee or as purchaser. The definition of consignee by the judge was accurate, and sufficiently comprehensive to direct the attention of the jury to the nature of the contract, and the distinction between a consignment for sale on consignor’s account and a purchase where the title passed though the goods were not paid for.

Nor was there any error in reading the act of assembly to the jury. It was done at the beginning of the charge as a concise and accurate mode of informing the jury of the exact offense for which the prisoner was on trial. That in reading the whole section of the act, the judge necessarily informed the jury what the penalty was which the law imposed for the offense, was merely an incidental result, not at all analogous to the specific direction of the jury’s attention to the consequences of a verdict of guilty which was held to be erroneous in Com. v. Switzer, 134 Pa. 383; Catasauqua Co. v. Hopkins, 141 Pa. 30 (45); and Rosenagle v. Handley, 151 Pa. 107.

The learned judge in his charge called the attention of the jury to the fact that the law regarded the act of a consignee in appropriating consigned property to his own use, as a very serious offense, which should not escape punishment, but he also cautioned them in equally explicit terms that for the very reason of the seriousness of the charge the prisoner should not be convicted 'upon slight evidence. We are unable to perceive anything in this of which the appellant has any cause to complain.

On the main issue however we think the case is with the appellant. It is peculiar in the respect that substantially the whole evidence is in writing. The dealings between the prosecutor and the prisoner were entirely by letter and telegram, and the judge submitted the case to the jury on these papers, and “ all the other facts and circumstances.” These other facts were, first, the shipment of the grapes at prisoner’s request and their receipt by him, facts not disputed, but which were equally consistent with guilt or innocence; secondly, failure of the prisoner to make immediate returns, a fact also undisputed but depending for its character on the capacity in which the receipt and sale of the goods were made ; and, thirdly, the prisoner’s announcement of himself on his letter headings as a commission merchant, and putting his dwelling place in the same heading where it might well be understood as his business address.

This was but a mere makeweight at the most. None of these outside facts and circumstances bore directly on the issue which was the fraudulent appropriation by a consignee or factor of the proceeds of sales of consigned goods. Without a foundation of evidence of this crucial fact all the other matters are immaterial, and the evidence of this fact as already said must be found, if at all, in the writings. The parties never met personally until after the transactions were past, and when they did meet nothing is testified to by the prosecutor which is material to the issue. We must turn therefore to the letters. The first of these is from appellant to the prosecutor asking to open business with him, and suggesting a “consignment.” This word and the printed letter head of “ commission merchant ” by themselves might as the commonwealth contends sustain the inference that the transaction was a consignment to a factor, but it is plain from the context that the word “ consignment ” was used in the sense of “ shipment,” for the offer immediately follows to “ handle all the grapes you can possibly ship on commission or will buy outright from you.” To this letter' the prosecutor replied by telegram “ will ship you a mixed lot .... For sample,” and two days later, by letter announcing the shipment as having been made. Neither telegram nor letter took any notice of the alternative to sell on commission or to buy outright which appellant’s letter had offered, nor made any mention of prices or terms either for sale or commission. Both parties seem to have regarded this first transaction as preliminary and experimental, and left it indefinite in all respects. A week later appellant wrote the second letter ordering more grapes of specified kinds, mentioning the price at which he had sold some, “ got 18c. for Delawares wholesale,” but concluding “ send bill with this order and I will forward you a check for full amount you forgot to state in your letter how much the .grapes was write and let me know send bill for full amount.” While the mention of the price which he got for the Delawares points somewhat towards a sale on commission, this construction is clearly overborne by the call-for a bill, the promise to send cheek for full amount, and the reminder that the shipper had forgotten to state how much the grapes of the first lot were to be. The substantial part of this letter, if not entirely inconsistent with a sale on commission indicates much more clearly a purchase, and was so understood by the prosecutor, for in his answer after acknowledging the receipt of the letter, he says “ will ship .... and forward bill of the amount ” and further on, “ write prices of different kinds that you will take.” A few days later the appellant wrote the third letter ordering more grapes offering 12 cents outright for mixed lots and repeating the direction to send bill for full amount and the promise to forward check. This closed the transactions. Two days after the date of the last letter the prosecutor carne to South Bethlehem and saw appellant for the first time, but nothing took place between them which throws any light on the transactions by letter, for though the prosecutor testifies that the goods were sent “ on commission ” yet he nowhere says that fact was communicated to the appellant, and his cross-examination indicates apparently that he used the words “ on commission ” as synonymous with “ on credit.”

As already said the case must be sustained, if at all, on the letters. They show that the business was conducted with almost incredible looseness on both sides. The prosecutor did not know what he was to get for his goods, which on his present theory was to depend entirely on what the appellant sold them for, a question he never asked, while on the other hand the appellant on his theory was selling goods without knowing what they had cost him, and whether he was making a profit or a loss. Neither version is consistent with the most ordinary principles of business care and prudence. But looseness of method is not fraud, and something more was necessary to sustain the indictment. The basis of the whole case was fraudulent misappropriation by a consignee or factor, and the commonwealth failed to prove that that was the prisoner’s relation to these transactions. Without that foundation there was nothing to which any of the other evidence in the case could be material, and the judge should have affirmed the appellant’s request, and directed a verdict of not guilty.

Judgment reversed.