46 Pa. Super. 172 | Pa. Super. Ct. | 1911
Opinion by
This appellant was in a number of indictments charged jointly with John H. Sanderson, James M. Shumaker, William P. Snyder and William L. Mathues with conspiracy to defraud the commonwealth of Pennsylvania. One of said indictments was No. 239, September Sessions, 1907, of the court below, and Joseph M. Huston having been granted a severance in that case, the other defendants were upon that indictment jointly tried and convicted. The indictment involved in the present proceeding is No. 240, September Sessions, 1907, of the court below, and a severance having been granted the other defendants in this case, the appellant, Joseph M. Huston, was tried in the court below and convicted, and from that judgment we have this appeal. The board of commissioners of public grounds and buildings had employed Joseph M. Huston as architect to prepare plans and specifications and all detailed drawings for all interior fittings, furniture, electric and gas fixtures for the new capítol building at Harrisburg, and he had accepted that appointment. The board
The invoice upon which the indictment in the present case is based was for 277 designed special desks, some being roll-top, some flat-top and others typewriter desks, billed as containing 3,366% feet at the price of $18.40 per foot, aggregating $61,948.20. The invoice and the certificate which accompanied it, signed by this defendant, referred to “Item No. 24,” but this was manifestly a clerical error, for “Item No. 24” provided for “Decorating and Painting, Series F” and fixed the price for the same at $2.52 per foot. The only item in the schedule the price of which was by the contract fixed at $18.40 per foot was “Item No. 22, Designed furniture, fittings, furnishings and decora
The commonwealth introduced testimony establishing the contract under which Huston was employed, by the board of commissioners of public grounds and buildings, as architect, “to prepare plans and specifications and all detail drawings for all interior fittings, furniture, electric and gas fixtures for the new capitol building,” the manner in which he discharged the duties arising out of that contract, the construction which he and the state officers put
The invoice in question was at the trial conceded to be false, both as to the price per foot and the number of feet at which the desks were charged. Even had not this admission by the defendant been formally entered upon the record, it would have been the duty of the court, as matter of law, to charge the jury that under the contract the invoice was false as to the rate per foot at which the desks were charged; they were charged for at the rate of $18.40, net, per foot, and there was no warrant under the contract for charging for them at a rate higher than $10.80 per foot. This defendant had approved that bill and there was attached to it a formal certificate signed by him. The
“No. 702. Philadelphia, March 30th, 1906.
“ Office of Joseph M. Huston, Architect,
“ Witherspoon Building.
“ I certify that John H. Sanderson is entitled to the payment of sixty-one thousand and nine hundred and forty-eight and twenty one hundredth dollars on account of his contract with the Commonwealth of Pennsylvania for interior fittings and furnishings under Item 24, being 3366% ft. at $20.00 less 8% — $18.40 per ft., delivered at capitol building, Harrisburg, Pa.
“ 40th Order.
“ $61,948-20/100. J. M. Huston, Architect.”
This certificate was attached to the invoice in question. There was upon the invoice in question at that time an affidavit of Sanderson averring the correctness of the charges. There was a dispute under the evidence as to whether James M. Shumaker, the superintendent of public grounds and buildings, and one of the parties here jointly charged, had approved this invoice prior to the certification by Huston or afterwards. This defendant arrived here, upon his return from Europe, on April 2, 1906, and shortly after that date and before the bill was paid he wrote upon the face of this false invoice, and immediately below the footing which consisted of “Item Number 24,
The bill was subsequently settled and paid by the auditor general and state treasurer. It was conceded in the court below that the words “Approved, J. M. Huston, Architect,” written in his own hand upon the face of the invoice, were intended by him and the other parties acting on the invoice to stand as the equivalent of the full form of the pink certificate and that they were thus placed upon the invoice to serve as the equivalent of the pink certificate, in case the latter should become detached and lost.
What did the certificates of this defendant, written upon and attached to this fraudulent invoice, mean? The certificates were in writing and had this been a civil proceeding it might have been the duty of the court below to pass upon their meaning as a question of law. The “pink certificate” attached to the bill specifically states that “John H. Sanderson is entitled to the payment of sixty-one thousand and nine hundred and forty-eight and twenty one hundredth dollars on account of his contract with the Commonwealth of Pennsylvania,” and the concluding part of the certificate, referring to the item number of the schedule and the measurement of the furniture simply shows the means of computation by which the amount was arrived at. The latter part of the certificate, referring to the item number of the schedule, the measurement of the furniture and the price per foot, seems to have been merely copied from the footings of the invoice, but it at that time clearly revealed to the person who issued the certificate the manner in which the amount due Sanderson was arrived at. One important fact is that the certificate distinctly stated that Sanderson was entitled to the payment of a specific sum of money; and equally important is the fact that the certificate failed to state that the desks in question complied with the plans and specifications prepared by the architect. With this certificate before him
The second specification of error is based upon the allegation that the charge of the court was inadequate, “in that the Commonwealth’s testimony was referred to with undue prominence and in detail, while the defendant’s testimony was inadequately presented to the jury.” The learned counsel representing the appellant had presented to the court thirty-six points, requesting specific instructions upon questions arising out of the evidence, and the general charge of the court was so full and satisfactory to the defendant that eighteen of those requests for specific instructions were withdrawn, and all of the remaining written requests, except the thirty-sixth which prayed for binding instructions in favor of the defendant, were affirmed by the court below. The complaint in this assignment of error is not that the court did not fully instruct the jury as to the law applicable to the facts established by the evidence; it is that the court did not fairly review the evidence and failed to adequately present to the jury the testimony produced by the defendant. When dealing with a specification of error of this character, no particular error of law or material misstatement of the evidence being pointed out, the court will be reviewed on the general effect of the charge, and not upon isolated sentences or paragraphs disconnected from the context which qualifies and explains them; if, as a whole, the charge was calculated to mislead there is error; if not there is no ground for reversal. The introduction of testimony at the trial in the court below began on April 5, 1910, and was not concluded until the twenty-fifth day of the same month, many witnesses had been called and a mass of documentary evidence had been submitted, for the court below to have referred to all this testimony in detail would have been not only undesirable, but unreasonable and impossible. The learned
The intention of the defendant in certifying the invoice, which is now admitted to be false and fraudulent, was the important question upon which the jury were required to pass. What meaning did he intend his certificates to con
The contention of the defendant, by his counsel, all through the case was that.he did not mean by his certificates upon and attached to the invoice in question that Sanderson was entitled to receive from the state the amount stated in the invoice, that what he meant to certify was that the articles conformed to his plans and specifications, that although the invoice was false as to the measurement, the price per foot at which it was charged and the total amount claimed by Sanderson, the certificates of the defendant were neither false nor fraudulent, that such certificates were true in that he only intended them to mean and under the usages of the profession of architects they only did mean that the furniture referred to in the invoice conformed to his plans and specifications. Whether this contention was made in good faith was a quéstion for the jury, and any evidence directly bearing upon the good faith of that contention was properly admissible. It was, therefore, competent for the commonwealth to prove that the desks in question were not specially designed desks and had not been made in accordance with designs and specifications prepared by the defendant, Huston. The commonwealth produced as a witness G. L. Holton, superintendent of the factory of the Derby Desk Co., who testified that all of the desks involved in this invoice had been made by the Derby Desk Co., that a large number of the desks involved in this invoice were not specially designed desks, but were stock articles supplied from the catalogue of the Derby Desk Co., the designs for which had been prepared exclusively by employees of that company; and that as to all the other, desks included in the invoice, they had been made by combining certain features of other desks in the catalogue of the Derby Desk Co. from designs and specifications made by employees of that company, and that all of the desks had been made without any reference to Huston’s designs or specifications. The witness further testified that no designs or
The fifth specification of error refers to the admission in evidence of four of the desks charged for in the invoice in question, and of the testimony of the superintendent of the factory at which these desks were made, as to the sizes of the desks, respectively. The desks and the testimony with regard to them revealed that two desks of exactly the same size, each being five and one half feet long were charged for in this invoice, one as containing twenty feet at $18.40 per foot, $368, and the other as containing fifteen feet at $18.40 per foot, $276. Of the other two desks No. 3 was charged as containing sixteen and one half feet at $18.40 per foot, $303, and No. 4 was charged as containing seven and one half feet at $18.40 per foot, $138. The only practical difference in the size of these desks was that No. 4 was three inches longer than No. 3, yet No. 3, the smaller desk was charged as containing sixteen and one half feet, while No. 4, the larger of the two desks, was charged as containing seven and one half feet. These desks and the evidence explanatory of them clearly demonstrated that the prices charged for these desks in the invoice had no relation whatever to the size of the desks, their length, the number of square feet of surface, or the number of cubic feet which they contained; the prices had been arbitrarily fixed without regard to the number of
The seventh specification of error refers to the admission in evidence of a letter written by the appellant to Henry C. Mercer. Mr. Mercer was the only manufacturer of “Moravian” tile in America, he had entered into an arrangement with the defendant, Huston, to supply the Moravian tiling for the main floor of the capitol building at $1.03 per square foot, which arrangement was in force at the time of and after the schedule of 1904-1905 had been approved. The Moravian tiling for the main floor of the capital building had been arranged for by the capitol building commission, and did not come under the present contract. The appellant, as architect, contemplated introducing Moravian tiling in certain of the work to be done under the contract to be awarded upon the schedule of 1904H905, by the board of commisioners of public grounds and buildings. He caused to be incorporated in that schedule “Item No. 41, Moravian tiles, Series F., maximum price $3.00 per foot.” The specifications which this defendant had prepared and upon which any contract let upon the schedule would be based, contained the following provision: “Moravian tile work, specifications; “Of the work and materials required in the furnishing, finishing and erecting in place the Moravian tile work for the capitol building at Harrisburg, Penna., according
The eighth specification of error refers to the admission in evidence of the “Quantities Plans.” These plans had been prepared by this defendant. The plans taken together covered every room in the capítol building; each one of the plans represented a floor of the building and the division thereof into rooms or departments and upon the plan were indicated by symbols the several articles of furniture or decoration which were to be supplied to that room or department by Sanderson under his contract. These plans were submitted by the appellant to the board
The ninth specification of error relates to the admission in evidence of two architect’s certificates, issued and signed by this defendant personally, in the following words and figures, namely:
“No. 501. Philadelphia, July 9th, 1904.
“I certify that John H. Sanderson is entitled to the pay*208 ment of fifty thousand dollars, on account of his contract with the Commonwealth of Pennsylvania, for interior fittings and furnishings of the capitol, at Harrisburg, Pa. “First Order.
“$50,000.00 J. M. Huston, Architect.”
“No. 507. Philadelphia, August 4th, 1904.
“I certify that John H. Sanderson is entitled to the payment of seventy-five thousand dollars, on account of his contract with the Commonwealth of Pennsylvania, for work done on interior fittings and furnishings of the capitol at Harrisburg, Penna.
“2nd Order.
“$75,000.00. J. M. Huston, Architect.”
The offer of these certificates was accompanied by the offer of the explanation of these transactions given by this defendant in a letter to Attorney General Carson, dated January 7,1907. “My recollection in connection with this matter is that John H. Sanderson requested the Auditor-General, who had been authorized by the board to pay for this work, to make such advancements on account of the articles manufactured, which could not be delivered to the building on account of there being no suitable place to put them, and also-for a large amount of work in course of manufacture, and offering to furnish the state a trust company's bond covering such advances. The Auditor-General asked me about it, and I said that I saw no reason why such advances could not be made under the conditions. He then requested me to issue the necessary certificates for the amount requested, and I did so.” No invoice or bill for furniture accompanied these certificates, no furniture had been delivered for which Sanderson was entitled to payment, even if the explanation of the defendant be accepted as true, the payment of the amounts mentioned in these certificates involved a payment in advance, “for a large amount of work in course of manufacture.” These certificates could not by any stretch of the imagination be construed to mean that this defendant was merely
The tenth specification of error is based upon the refusal by the court of the defendant’s thirty-sixth point, which prayed for binding instructions in favor of the defendant. We are of opinion that the point was properly refused. The commonwealth had produced evidence which established that in prior invoices rendered by Sanderson under this contract desks precisely similar to those covered by the invoice upon which this indictment was founded had been charged for by him, certified by this appellant, and settled, approved and paid by the other parties charged, under item 27 at the rate of $10.80 per foot. This evidence also disclosed that no consistent system of measurement had been adhered to in determining the price to be paid by the state for the desks furnished under the contract, desks which were of the same
The eleventh, twelfth and thirteenth specifications of error relate to the verdict, and may be considered together. The only finding which was received by the court, recorded and affirmed by the jury as their verdict was “Guilty as indicted,” with a recommendation to leniency on the part of the court in pronouncing sentence. This
The Court: “You must determine — the question for you to determine is whether he is guilty of the conspiracy charged in the indictment. You mean by this, you find him guilty of the charge contained in this indictment?”
The foreman: “It is changed, don’t you see?”
The Court: “You say the defendant is guilty of defrauding the Commonwealth. We ask you whether you mean by that, whether you find him guilty of the charge contained in this indictment. Is that what you mean?”
The foreman: “We let the conspiracy off, we agreed to let the conspiracy off.”
The Court: “The question to determine is, whether he was guilty of the conspiracy.”
The foreman: “That is what we would not agree.”
The Court: “Have you considered that?”
The foreman: “Yes, sir: and we agreed that there was no conspiracy; we have agreed on that.”
The Court: “The question for you to determine is, whether the defendant is guilty of the conspiracy charged in the indictment, being a party to the conspiracy charged in the indictment to defraud the Commonwealth. That is what you mean?”
The foreman: “They all agreed; that is the only way they would agree.”
If there was error on the part of the learned judge of the court below, it was in refusing to receive the first verdict tendered, and in not permitting it to be entered upon the record and affirmed by the jury in the usual way. The functions of the court and the jury, in so far as the question presented by this record is concerned, are under our system of criminal procedure, well defined. Discussion may have arisen as to whether it is within the province of the jury to determine questions of law, in cases where a general verdict is required, but all authorities agree that the facts must be found by the jury. When a verdict cannot be construed to have found all the essential facts no valid judgment can be entered upon it and the state and the accused are put to the inconvenience and expense of a new trial and the resultant delay. This being the case, the administration of justice must become a mockery if the courts were required to receive and record every verdict tendered, however informal and unresponsive to the issue. It is essential to the promptness and certainty of the administration of justice that the courts shall have the power to direct the jury to correct mere formal defects in verdicts, and advise them of defects in substance and send
Did the first verdict tendered by the jury acquit the defendant? The verdict tendered, when the jury were asked by the clerk if they had agreed upon a verdict, was written upon the indictment and, as printed in the record and as read to the jury by the court in the colloquy which followed, was in these words: “Guilty of defrauding the Commonwealth.” This was the only verdict tendered by the jury to the court at that time, or prior to the time when after further deliberation, they returned the verdict which was recorded and upon which judgment was entered. The indictment charged the defendant with having conspired with John H. Sanderson and others to defraud the commonwealth and averred, as the overt act done in pursuance of the conspiracy, the presentation, certification and payment of a certain false invoice, and concluded “Whereby, the said Commonwealth of Pennsylvania was cheated and
The written finding, which was the only verdict actually tendered by the jury, was clearly insufficient and not responsive to the issue, and if it be taken in connection with the answers of the foreman as to its meaning, the whole, taken together, was still insufficient, uncertain and repugnant. It could not be construed as a verdict which definitely passed upon the real issue presented. This being the case it was clearly proper for the court to direct the jury to retire for further deliberation. But, as we have already said, the conflicting answers of the foreman were no part of the verdict which the jury tendered. The learned counsel representing the appellant argue that the questions repeatedly addressed by the court to the jury, as to the meaning of the first verdict tendered, constituted an improper interference by the court with the functions of the jury and involved coercion of the latter. We have examined the record with care and, after maturely considering the argument presented, are convinced that the complaint is without merit. If after the replies of the foreman to the second, third and fourth questions of the court, which clearly indicated that the jury had not agreed upon the question whether the defendant was guilty of conspiracy, the court in pursuing the colloquy had received an answer definitely stating,that the jury had agreed that
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 said court committed until he has complied with that part of the sentence which had not been performed at the time this appeal was made a supersedeas.