Commonwealth v. MeyerCommonwealth v. Meyer
- Reporters:
- , ,
- Before:
- Hirt
Opinion by
Hirt, J.,The defendant, in anger, seriously injured the prosecutor Theodore Pitts by striking him across the face, using his rifle as a club. The blow was of such force that the stock of the gun was’ broken by the impact. Subject to possible restoration by plastic surgery, the disfigurement of Pitts’ face is permanent. Defendant was convicted of aggravated assault and battery. The jury well might have found him guilty of the more serious count of the indictment chargiiSg assault with intent to maim. Pending disposition of rules for a new trial and in arrest of judgment, defendant entered cash bail in the sum of $2,000 as fixed by the court.
On May 16, 1949, defendant withdrew his motions for a new trial and in arrest of judgment and appeared for sentence. He was there represented by counsel who defended him at the trial and by Leighton R. Scott, Esq., of Easton, whom he had retained to represent him in his effort to escape a jail sentence. As authorized by the defendant, and in his presence, Mr. Scott then stated to the court that defendant was penitent and desired to make amends; that defendant had agreed to pay the injured man the sum of $2,500 in settlement of his civil damage and as evidence of his sincerity of purpose had given his note to the prosecutor in that amount on which judgment had been confessed against him. At the time defendant owned real
Tbe clerk of court in making a docket entry of tbe order of tbe court of Miay 16, 1949, placing tbe defendant on probation erroneously and without authority included tbe payment of $2,500 “to tbe victim” as “tbe
sentence
of tbe court”. As a matter of fact no sentence was then imposed; tbe payment of tbe above sum of $2,500 remained tbe obligation of the defendant only by bis agreement with tbe injured prosecutor and not under any sentence of court or condition of the order of probation. On October 30, 1950, when tbe error was called to tbe court’s attention the record was corrected to conform with tbe court’s actual disposition of tbe case, by tbe substitution of tbe following order for tbe docket entry made by tbe clerk in error: “AND NOW,
The court clearly had the power to correct the clerical errors in the docket entry of the oral order of the court, suspending sentence and placing the defendant on probation. If an entry upon the records of the court is inaccurate it will be corrected when called to the court’s attention “to the end that it may speak the truth”: Hill v. United States, 298 U. S. 460, 56 S. Ct. 760. The law of this State conforms with the general rule that such clerical errors may be corrected by amendment even in a criminal case. Sharff v. The Commonwealth, 2 Binney 514; the order in the instant case, which merely made the record conform to the facts, clearly was a proper exercise of the power of the court. Commonwealth v. Silcox, 161 Pa. 484, 496, 29 A. 105.
The terms of the order as corrected, conformed with the provisions of the Probation Act of June 19, 1911, P. L. 1055, as amended,
Appellant’s argument misconstrues the reasons which moved the court to revoke the probation order and to sentence the defendant on February 19, 1951. The court did not revoke the order because the defendant failed to fulfill his promise to discharge his civil obligation to the injured man. Sentence was imposed because the defendant induced the order placing him on probation fraudulently, not only by his misrepresentation that he had agreed upon settlement with the prosecutor and intended to pay him $2,500 but also that he was of a penitent state of mind and therefore a worthy subject for probation. A misrepresentation of one’s intention or state of mind may amount to fraud. Standard Elevator Co. v. Wilson, 218 Pa. 280, 67 A. 463. Of course a promise to do something in the future in itself does not constitute fraud but fraud may be predicated on the nonperformance of a promise made as a device to accomplish the fraud. McCreary v. Edwards, 113 Pa. Superior Ct. 151, 172 A. 166; Maguire v. Wheeler, 300 Pa. 513, 150 A. 882. It cannot be doubted that defendant’s asserted agreement, subsequently revoked, to pay $2,500 to the injured man, was such fraudulent device. In September 1949 defendant was in position to satisfy the judgment confessed on his note, out of about $5,000 net, received by him on the sale of property, supplementing the bail money which had been returned to him. He paid nothing. The entry of judgment did’ not amount to satisfaction of the obligation. A judgment, until made productive by payment, is but security for the acknowledged debt. Brennan et al. v. Huber, 112 Pa. Superior Ct. 299, 307, 171 A. 122.
Fraudulent representations which induce a probation order are grounds for its revocation and the im
The period of probation under the Act cannot exceed the maximum for which a defendant might have been imprisoned — in this instance a term of three years. Commonwealth v. Ciccone, 84 Pa. Superior Ct. 224. The sentence in the instant case was imposed one year and nine months after the date of the probation order, thus within the provision of the Act which limits the time for the imposition of sentence to the period of the maximum term of imprisonment for the offense. Com. ex rel. Wilhelm v. Morgan, 278 Pa. 395, 123 A. 337.
There is no merit in any of the defendant’s contentions in this appeal.
Judgment of sentence 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 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 was made a supersedeas.