Commonwealth v. Lenhart, 40 Pa. Super. 572

Commonwealth v. Lenhart

40 Pa. Super. 572

Pa. Super. Ct.

1909

Check Treatment

Opinion by

Henderson, J.,

The appellant was indicted with O. F. Piper for conspiracy to cheat and defraud the People’s Bank of California, Pa., by unlawfully and fraudulently obtaining divers large sums of money therefrom. Piper having pleaded nolo contendere the case went to trial against Lenhart alone. The evidence of the commonwealth showed that the appellant had obtained from the bank by transactions extending through a period of about two years sums of money amounting in the aggregate to about $69,000 for which no adequate security was given and which was lost to the bank; that no record of these transactions was regularly entered on the books of the bank and that the directors or officers of the bank other than Piper were not informed that the money was so obtained; that numerous checks of Piper, the cashier, were issued to a fictitious person on the appellant’s account; that a course of “kiting” checks was engaged in by the appellant through the People’s Bank; that the books of the bank were falsified by Piper; that the appellant caused to be printed a simulated letter head of the state banking department to be used by Piper in exhibiting to the directors of the bank alleged letters from that department; that the appellant knew that the books of the bank were falsified and that the bank was not receiving any consideration for its funds involved by the cashier’s checks and the appellant’s kiting operations. The defendant made a general denial of any intention to defraud or knowledge that the books of the bank had been altered or that he knew what use was to be made of the imitated letter heads of the banking department, and contended that his liability to the bank did not éxceed about $29-,000. The defendant’s first, third, fourth and sixth points present in different forms the first proposition for which the learned counsel for the appellant contend. That was, as stated in the sixth point, that in order to justify a conviction the jury must be satisfied that at the time the defendant obtained the money from Piper he intended to defraud the bank and that Piper in furnishing the money also intended to defraud the bank. This proposition was affirmed with the qualification in substance that if the money was knowingly obtained by unlawful means not communicated to the *584bank or in violation of the laws of the state banking department the defendant might be convicted. The answers to these points are made the subject of the first, second and third assignments of error. The argument for the appellant is that if he had an intention to repay when the money was obtained and Piper had an honest belief that the defendant would repay, the charge of conspiracy could not be sustained, but the commonwealth’s case does not depend on its ability to show that at the time each sum of money was obtained from the bank there was a purpose of the cashier and the defendant to cheat. The evidence shows clearly that much of the prejudice to the bank resulted from the manner in which the business was transacted by the defendant and the cashier, the effect of which was to keep the directors of the bank in ignorance of the existence of the loans and thereby deprive them of an opportunity to collect the indebtedness before it had grown to the large proportions which it subsequently assumed and while the defendant had some property within reach of his creditors. The good intention of the parties at the time the money was taken from the bank is not a sufficient answer to the evidence of the commonwealth tending to show an arrangement between the cashier and the appellant to conceal their operations to use large amounts of the money of the bank without compensation and by unlawful methods to prevent the state banking department from acquiring information of the true condition of the bank’s business. It is not pretended that there was not an understanding and intention on the part of Piper and the defendant to adopt the method used by the latter in obtaining the money and postponing payment thereof, and if the things were done which are charged in the commonwealth’s evidence an original intention on the part of the defendant to pay the money received does not relieve the defendant from answering the accusation. A combination to defraud could have been entered into at a later stage of the business, and the commonwealth’s evidence tends to show that such was the fact.

Piper was called as a witness for the commonwealth. An objection is made in the fourth assignment of error that the answer of the court to the defendant’s seventh point should *585have been an affirmance without qualification. The point asked the instruction that the jury should receive the testimony of an accomplice with caution. This point was affirmed with the qualification that if the jury believed the testimony of an acr complice they were justified in considering it carefully. There is no rule of law which forbids a conviction on the testimony of an accomplice, alone. The appearance of the witness and his manner of testifying may so impress a jury as to satisfy them of the truth of his evidence: Cox v. Com., 125 Pa. 94; Com. v. Craig, 19 Pa. Superior Ct. 81. But the instruction on the subject did not end with the answer to the point. In that part of the charge set forth in the seventeenth assignment the jury was told that they must receive the testimony of an accomplice with caution throughout and with great caution where it is not corroborated in any instance and even where corroborated that caution must still be observed. The answer to the point and the instruction of the court in the general charge set forth the law clearly and correctly on that subject.

Part of the commonwealth’s case consisted of evidence that cashier’s checks were issued by Piper payable to M. L. Burd or to H. C. Fox, which were for the use of the appellant, the payee having no interest whatever in the fund to be produced by the checks. The defendant’s second point asked the court to say that the writing of the name of said Burd or Fox on the checks made to their order but belonging in fact to the defendant did not constitute forgery. This point was affirmed with the further instruction that if Piper and the appellant agreed to use the checks in the name of Burd or Fox for the purpose of preventing banks, including the People’s Bank of California, from knowing or learning the extent of the defendant’s dealings with that bank to the injury of the bank, the agreement was unlawful. This is made the subject of the fifth assignment of error. The point might well have been refused, for there was no allegation on the part of the commonwealth that the indorsements on these checks were forgeries. It was not material to the prosecution whether the names of the payees were indorsed on the checks by them or by Piper or the defendant. The transactions relating to these checks were introduced to show the method by *586which some of the funds of the bank were obtained and to show the understanding between Piper and the defendant that that was to be done in a way to mislead and to keep from the knowledge of the directors of the bank or the officers of other banks the extent of the defendant’s operations. Piper had.testified that the object of using the name of Miss Burd in the checks was to keep the name of the defendant from going through the Mellon National Bank of Pittsburg or the First National Bank of California because he, Piper, had objected to so many of the defendant’s checks passing through their bank to other banks. It was entirely appropriate, therefore, for the court to tell the jury in answering the point what the bearing of the evidence was.

The sixth assignment relates to a statement of the trial judge to the counsel indicating what his instruction to the jury would be in regard to the evidence relating to an understanding that the money of the bank should be used and the transactions not entered on the books of the bank. The criticism made on this remark by the appellant is that there was no evidence that the defendant’s transactions with the bank were hidden from the directors, but the testimony of Piper is quite to the contrary and it is corroborated by the testimony of Miss Burd in material parts. The evidence relating to the imitated letter heads of the banking department was also pertinent in that connection. Moreover, the language excepted to was not addressed to the jury and is not contained in the charge of the court. It was the court’s announcement to the counsel of the view he entertained on that part of the evidence. The assignment cannot, therefore, be sustained.

Assignments seven to seventeen, inclusive, bring up portions of the charge for review. The criticisms made thereon are creditable to the diligence and acuteness of the learned counsel for the appellant, but we are not persuaded that any one of them presents an error for which the case should be reversed. It is a very familiar rule that in reviewing the charge of a trial court a fragment of it is not to be judged without regard to the other parts, and where the charge taken as a whole correctly expresses the law appropriate to the questions involved the *587judgment will not be reversed. Even where it indicates a leaning toward the side of the commonwealth that is not a sufficient ground for reversal where the charge as a whole contains a correct and adequate presentation of the law applicable to the facts which the testimony tended to establish; and even when a strong opinion on the evidence is expressed as in Johnston v. Com., 85 Pa. 54, that is held not to be erroneous when considered in connection with the other parts of the charge. The argument that the language of the court as set forth in the seventh, eighth and tenth assignments takes out of the case the question of intent loses its force when the whole charge is considered. The defendant's first point called for an instruction that the gist of the offense of conspiracy is an intention on the part of the defendant to commit a crime, and that unless the jury found that both of the defendants intended when the loans were made to defraud the bank the verdict must be for the defendant. This point was affirmed by the court. The jury was thus clearly told that the commonwealth must show that the parties indicted intended to commit the fraud charged. The jury was further instructed in different parts of the charge that they must determine from the evidence whether there was an unlawful combination formed between the appellant and Piper to commit the offense charged in the indictment. We think there can be no doubt that the jury understood very clearly that the burden was on the commonwealth to show not only that the defendant got the money from the bank, but that he and Piper intended to commit a fraud against it. It is carrying criticism to an extreme limit to hold that the portion of the charge set forth in the ninth assignment is a recital of the testimony showing what Lenhart and Piper had done. The court in the portion of the charge immediately preceding the part here objected to drew the distinction between a corrupt combination and the overt act tending to show it, and then used the language complained of. It was evidently intended as an illustration' to show how an act lawful in itself might be committed in an unlawful manner and thereby subject the perpetrators to criminal responsibility. In view of what the record showed and Piper testified to no harm resulted to the appellant from that part of *588the charge contained in the thirteenth assignment, and if the trial judge inadvertently used the word “confessed” in stating the effect of the plea of nolo contendere his attention should have been called to that if it was deemed a matter of importance. Piper testified to a state of facts which amounted to a confession of guilt of the offense charged, and the possibility that the jury may have been misled by the language used is most remote.

The references of the court to the claims of the commonwealth discussed under the fourteenth, fifteenth, and sixteenth assignments are not in violation of any rule of law and were justified by the commonwealth's evidence. We do not understand them to be the assertion of conclusions established by the evidence but references to the contention of the commonwealth that the evidence did prove what was claimed.

The final objection to the charge is that it was unfair, inadequate and prejudicial to the defendant. We have examined it carefully in the light of this objection, but are not convinced that there is any support for the complaint. It covers the case with sufficient fullness and directs the attention of the jury to the principal features of the evidence, and near the conclusion contains the following instruction: “All that means is that you should proceed with caution and care and deliberation and consider all the evidence in the case, taking into account the denial that the defendant makes of any wrongdoing here, and the corroborative testimony of his side of the case, claiming that he was simply banking in the regular way and was not chargeable with any irregularities that were committed by Mr. Piper who was the cashier of the bank, in the bank, by which the bank lost its money, if it did, through him, when he was not a party — if he was not — to any unlawful combination or agreement with the cashier to do the unlawful acts which evidently did result in this bank being closed by reason of losing its assets.” If more frequent reference was made to the evidence introduced by the commonwealth it was because the case for the prosecution involved many facts established by books, documents and oral evidence, while the case for the appellant was largely made up of his own testimony, but we do not find anything in *589the charge to show an unfair presentation of the appellant’s case. Complaint is made that the court omitted to call attention to parts of the evidence favorable to the defendant, but this may be said also with reference to the evidence offered for the prosecution. The evidence was voluminous, and the trial continued for several days. If the trial judge neglected to charge on some subject which was deemed important, fairness required that his attention should be called to it before the jury was sent out in order that the omission might be corrected. We do not regard the charge as either unfair or inadequate for the question of the existence of the alleged conspiracy, and the intention of the parties indicted was clearly and sufficiently brought to the attention of the jury.

The argument in support of the nineteenth assignment of error assumes that the checks referred to were offered for the purpose of showing that the bank was defrauded of the amount of money expressed therein, but this was not the purpose stated by the commonwealth when the offer was made. It may be that as an independent fact the evidence was not sufficient to make out a case, but it was clearly competent in support of the charge that the appellant and Piper had entered into a fraudulent arrangement to permit Lenhart to use the money of the bank. The transaction was irregular in form, was for the benefit of Len-hart and was not made a subject of record in the bank. It tended to sustain the complaint that a conspiracy existed.

Exception is taken in the twentieth and twenty-first assignments of error to the action of the court in admitting evidence not sufficiently set forth in the bill of particulars and especially that the evidence relating to the Pike Run School District account was introduced without notice. The bill of particulars put the defendant on notice of the matters charged against Piper in the indictment against him individually at No. 109, February Term, the twenty-fifth and twenty-sixth counts in which indictment related to the transaction proved against the defendant. That notice informed the defendant that the commonwealth would show that on October 4, 1907, Piper entered in the individual deposits account of the ledger of the People’s Bank the total amount of individual deposits as *590being $136,189.18, whereas the true amount was $134,844.18; that this entry was made with intent to defraud the bank and with the knowledge and consent of the appellant and for his benefit. The evidence offered was to show that the amount of the fraudulent entry made by Piper was deducted from the account of the school district and that this amount was given to the appellant in the form of a draft for $800 on the People’s National Bank of Pittsburg and a credit on an overdraft of $515.71. The bill of particulars covered this transaction and if it did not sufficiently explain the method by which the money was obtained it was the duty of the defendant to ask for a more specific bill of particulars which the court would have granted. The remaining specifications of error do not require special notice. We are not satisfied that the action of the court was erroneous with respect to any of the matters complained of.

The judgment is affirmed and it is ordered that the defendant appear in the court below there to be committed to serve that part of his sentence which had not been undergone at the time this appeal was made a supersedeas.