76 Pa. Super. 413 | Pa. Super. Ct. | 1921
Opinion by
The principal questions raised by this appeal are: (1) Is a duplicate tax receipt, not containing the seal of the state treasurer, the subject of a charge of fraudulently making and signing a written instrument to the prejudice of another’s right, with intent to defraud? (2) May a verdict stand which acquits a defendant of fraudulently uttering a written instrument, and, at the same time, finds him guilty of having fraudulently made and signed it, where the only proof of such fraudulent mak
(1) The law does not require the seal of the state treasurer to be affixed to receipts for taxes issued by him. It provides: “No receipt for money paid into the state treasury shall be good or available in law, unless signed by the state treasurer, or by some person known to be in his employ, and for whom he is answerable”: Section 36 of Act of March 30,1811, 5 Sm. L. 228. The countersignature of the auditor general is required by Act of April 10, 1849, P. L. 631, section 8: “No receipt for money paid into the state treasury shall be good or available in law unless countersigned by the auditor general, to whom all receipts of money paid into the treasury shall be presented; the auditor general is hereby authorized and required to provide suitable books in which he shall enter, or cause to be entered, the amount and date of the receipts presented, and the names of the parties to whose credit the money was paid, and he shall then countersign the same with his official signature.” The auditor general may authorize an agent, for whom he is responsible, to countersign such receipts on his behalf, using such official form of signature as he may decide upon, the same as any other person may direct his name to be signed for him: Fitzpatrick v. Engard, 175 Pa. 393; and a receipt for taxes paid, signed by the state treasurer or his duly authorized employee and countersigned with the official signature of the auditor general by the person authorized by Mm to affix it, would be a valid acquittance of the money so paid.
A duplicate receipt is not a copy, as generally understood. It is an original paper intended to take the place of and have all the validity of an original. It is defined in Corpus Juris, Yol. 19, p. 836: “The double of anything; an original repeated; a counterpart; one of two originals of the same tenor; the exact repetition of an instrument having all the validity of an original.” “A duplicate is an original instrument just as much so as
We are satisfied that a duplicate tax receipt is such a written instrument as may be fraudulently made and signed in violation of section 169 of the Criminal Code,
(2) Forgery and knowingly uttering a forged instrument are two distinct offenses: Com. v. Miller, 115 S. W. 234 (Ky.); State v. Blodgett, 121 N. W. 685 (Iowa); though they may be joined in one count if the forging and uttering were practically simultaneous and arose from the same act or transaction: Com. v. Hall, 23 Pa. Superior Ct. 104, An acquittal of forgery does not bar a prosecution for uttering the same forged instrument: Preston v. State, 48 S. W. 581 (Texas); nor does an acquittal of uttering a forged instrument preclude a subsequent prosecution for forging it: State v. Blodgett, supra; State v. Williams, 53 S. W. 424 (Mo.); Beyerline v. State, 45 N. E. 772 (Ind.). And any evidence introduced at the first trial which is relevant to the second prosecution may be offered and received on such trial; none of it is discredited, so as to bar its admission, or rendered incompetent, at the second trial, because of the defendant’s acquittal at the trial when it was first presented.
There was sufficient evidence, if believed, to warrant the jury in finding that the defendant had forged the duplicate state tax receipts referred to in the several indictments, in Philadelphia County. He was acting as the agent or representative of the Merchant and Evans Company in the settlement of its state taxes. The money for the taxes admittedly had been received by him and deposited in his individual bank account the day before the date the receipts purported to bear and was not actually applied to their payment for nearly four months thereafter. It is true defendant gave reasons for this delay but his credibility was for the jury. It was testified that defendant, about this time, had endeavored to obtain some original blank táx re-
The fact that the receipts purport to be signed on behalf of the state treasurer and auditor general in Dauphin County is no more persuasive that they were forged there than the fact that a forged note purports to be dated more than five years ago is proof that it was made at the time of its purported date and is, therefore, barred by the statute of limitations: Com. v. Hall, 24 Pa. Superior Ct. 558, p. 560.
But defendant contends that as he was acquitted on the second count, the evidence as to where the receipts were delivered to the Merchant and Evans Company cannot be considered in reference to the first count. We do not so hold. The jury did not find that Mr. Evans’s testimony, in that respect, was false or unworthy of belief; they simply found that the defendant did not unlawfully and fraudulently utter and publish the several receipts as true as laid in the indictment, knowing them to be fraudulent, to the prejudice of the Merchant and
In Com. v. Hall, 23 Pa. Superior Ct. 104, and 24 Pa. Superior Ct. 558, where both offenses were joined in one count, and it was ruled that there could not be a general conviction on the indictment unless the two offenses were committed in one and the same transaction, the only proof of the forgery in the county where the venue was laid was evidence of the uttering there and the defendant was convicted only of the forgery and his conviction was sustained.
In like manner, a man may be acquitted of receiving stolen goods and subsequently convicted of larceny when the only incriminating evidence in the case is his possession of the stolen article, or he may be acquitted of larceny and subsequently convicted of receiving stolen goods, on the same evidence; in either case the acquittal does not render relevant and competent evidence in the second case incompetent and inadmissible because it was received in the first case and failed to secure a conviction.
We are of opinion that there was relevant and competent evidence in the case, sufficient if believed by the
The defendant also complains that in his charge to the jury the trial judge laid too much stress on the defendant’s misappropriation of the money sent him to settle the taxes, and that the jury may have been misled into thinking that that was “the offense” of which they might find defendant guilty. We do not think so. The trial judge clearly and distinctly defined the offenses for which defendant was being tried, stated the constituents of each charge, and told the jury what they must find in order to convict the defendant of that charge. His reference to the misappropriation of the money was only in connection with the necessity for showing the intent to defraud and that the forgery was to the prejudice of another’s right, and his use of the word “offense” was clearly in connection with the immediately preceding words, relating to the charge of fraudulently and unlawfully making and signing the receipts, upon which subject he was then addressing the jury.
The remaining assignments of error need not be referred to at length. The various questions raised by them were all disposed of satisfactorily in the opinion of the learned court below refusing a new trial, which will be printed in full in the report of this case.
The judgment is affirmed and the record remitted to the court below, 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.