Commonwealth v. Levinson

34 Pa. Super. 286 | Pa. | 1907

Opinion by

Henderson, J.,

The appellant contends that this judgment should be reversed for three reasons. The first is that evidence was admitted of independent crimes committed by the defendant -in another country ; the second, that a bill of particulars was filed by the commonwealth alleging that the larceny charged in the indictment was accomplished by means of a trespass and that the court should have charged the jury that they could only find the defendant guilty if they believed that the defendant’s act was accomplished by means of a trespass ; and third, that the prosecutor neither owned nor possessed either actually or constructively the money alleged to have been stolen from him.

It may be conceded that, generally speaking, evidence of an independent crime is not admissible in the trial of a defendant for a specific offense. Evidence of collateral facts not only does not tend to establish the charge set forth in the indictment but diverts the attention of the jurors from the consideration of the real point in issue and has a tendency to mislead them in their inquiry after the truth. There are numerous exceptions to the rule, however, as was shown in Swan v. Com., 104 Pa. 218; Goersen v. Com., 99 Pa. 388; Hester v. Com., 85 Pa. 139 and Com. v. House, 6 Pa. Superior Ct. 92. Where the testimony bears upon the conduct and motive of the accused with reference to the particular charge, or where it tends to show the relation between parties in connection with the crime alleged, such evidence is always admissible. It was with such an object in view that the evidence bearing upon the relation of the defendant to the wife of the prosecutor in Africa and England as well as in this country was offered by the commonwealth and admitted by the court. It did not present a collateral and independent state of facts. The money alleged to have been stolen was taken from under the pillow of the prosecutor’s wife’s bed in the city of Pittsburg at the home of the defendant’s father. It became a matter of prime importance to ascertain how Mrs. Simpson happened to be in Pittsburg at that time, how she became possessed of the large sum of money which she then had, and this inquiry necessarily led to South Africa, to the relation of the defendant to the prosecutor and Iris wife, his connection with them in the sale of the farm, bis influence over the prosecutor’s wife, their trip to England and from there to the United States and their association together in various places. Without such evidence the commonwealth could hardly have expected the jury to believe the story of the principal witness for the prosecution or to have convicted the defendant. Much light is thrown upon the charge of the actual larceny in Allegheny county by the testimony showing the intimacy between the prosecutor’s wife and the defendant, the sale of the farm, the depositing of the money in the bank in South Africa, the preparation of the paper through which this was accomplished and the transfer of the money by the prosecutor’s wife first to England and then to the United States. It is manifest that this evidence was not introduced for the purpose of establishing an independent crime, but to account for the situation of the parties at the time the larceny was committed. If the facts disclosed bore heavily against the defendant they are not to be excluded on that account. Being admissible as a series of events which led up to and made possible the act charged against the defendant in the indictment the court was notin error in admitting the testimony to prove them.

In response to a petition for a bill of particulars, the commonwealth set forth that the defendant committed the larceny charged in the indictment and that' the taking of the property was accompanied by a trespass. And this is just what was proved by the evidence of the witnesses for the prosecution. It was thereby shown that the defendant entered the apartment occupied by the prosecutor’s wife, in her absence, and took and carried away the money which she had concealed in her bed. This was the only taking shown by the commonwealth and is evidently the act by which the conviction was supported. It is true, the learned trial judge stated to the jury that if the defendant obtained the money from the prosecutor’s wife by any trick or fraud, or if she gave it to him simply to have the custody of it, and he afterward appropriated it to his own use, he was guilty of larceny in like manner, as if he took it from under the pillow of the bed. But this instruction was apparently suggested by the claim of the defendant’s counsel in the progress of the trial, that the prosecutor’s wife gave the defendant the money, and was not based upon any evidence which would have justified the jury in concluding that the money was so given. It did appear that after Mrs. Simpson was informed by her children that the defendant had taken the money, she did not make an immediate effort to recover it, and that she remained quiet about the matter until after the defendant failed to meet her in Liverpool,, but if the taking was as shown by the commonwealth, the offense was completed when the money was appropriated by the defendant and the omission of the prosecutor’s wife to act promptly in an effort to recover it, did not change the character of the defendant’s act.

The evidence warrants the instruction of tbe court to the effect that the money was the property of the prosecutor. It does not appear whether Simpson executed the deed for' the farm, or whether the conveyance was made by his wife, under the authority of the power of attorney, but it is clearly established -that the land belonged to the prosecutor, that the money which his wife received was the purchase hioney therefor, and that she was acting as his attorney in fact in completing the sale. She deposited the money in his behalf, and in keeping the funds, acted as his agent. He could have recovered the fund from the bank in which it was deposited, or from the defendant in an action at law, by exhibiting the proofs presented at the trial, and he had such a property in the money as supported the averment in the indictment of ownership by him. Much of the appellant’s argument would be appropriate if the allegation were that the larceny was committed by the prosecutor’s wife, but the charge and the evidence are, that the defendant stole the money when it was in the custody of the prosecutor’s agent. This was positively and directly shown, but it was not proved that Mrs. Simpson first committed a larceny of the fund from her husband. We do not deem it necessary to go into a discussion of the amenability of the defendant to the indictment, if the prosecutor’s wife stole her husband’s money in Africa and afterward converted it into other funds which the defendant subsequently stole, for this is not the case presented by the commonwealth nór that submitted by the court to the jury. Moreover, the authorities are all to the effect that receipt from the wife of the husband’s goods by an adulterer or one intending to elope with her and live with her in adultery is larceny from the husband: People v. Schuyler, 6 Cowen, 572; Reg. v. Featherstone, 2 C. L. R. 774; Reg. v. Tollett, 41 E. C. L. 67. If the defendant sustained the illicit relation to the prosecutor’s wife which the commonwealth proved, and.counseled and connived with her to leave South Africa and go to the United States and afterward took the money from Mrs. Simpson’s room, his act would be a larceny of the prosecutor’s property. We are not persuaded that any error was committed by the trial judge.

The judgment is affirmed and the record remitted to the court below to the end that tbe sentence may be carried into execution.