52 Pa. Super. 548 | Pa. Super. Ct. | 1913
Opinion by
The indictment against the appellants contains two counts. The first is drawn under the 128th section of the crimes Act of March 31, 1860, P. L. 382 and charges the defendants with having unlawfully, falsely and maliciously conspired and agreed with each other and with certain other persons in the indictment named to cheat and defraud the National Protective Association and its beneficial members and policy holders of the money, property and chattels of the said association héld by it for its beneficial members and policy holders, the said money, property and chattels being in the care, custody and control of the appellants as officers and directors of the said protective association, it being a corporation organized under the laws of Pennsylvania. It is further charged that this conspiracy was carried into effect by an agreement between the defendant and the other alleged conspirators pursuant to which the appellants and other directors of the said association resigned their offices as directors and aided in the election of certain other persons as directors of said association in place of the directors who resigned; that immediately thereafter the defendants who constituted the executive committee of the board of directors of the association and were in active administration of its affairs unlawfully and corruptly transferred and delivered to their alleged co-conspirators all of the money, chattels and other property of the said association; that one or more of the said co-conspirators unlawfully and corruptly paid to the said appellants the sum of $18,000, pursuant to said conspiracy and unlawful agreement, and that by means of said conspiracy and agreement the said co-conspirators or some of them unlawfully and corruptly hold and dispose of the
In the second assignment exception is taken to the action of the court in admitting the testimony of Blackburn in regard to a meeting with Stanton and Beaman in the city of New York prior to the meeting at Williamsport at which it is alleged the conspiracy was completed. This evidence was admitted to show the development of the arrangement which resulted in the transaction out of which the prosecution grew. It was necessary to make a beginning of proof, and a logical order was observed in the presentation of the commonwealth’s evidence. Several persons were connected with the scheme; they lived in different places; some of them held consultations apart from others, but all of these conferences and acts were directed toward the same object and had their focal point at Williamsport where the persons interested all met on September 9 and September 10, 1910, to complete and carry out the plan. The conference between Blackburn and Stanton and. Beaman had direct connection with this final meeting and showed how Blackburn came into the arrangement and the connection of Beaman and Stanton who were said to be implicated in the conspiracy alleged. Whatever doubt there could have been in regard to the admissibility of the evidence at the time it was offered was removed by evidence subsequently introduced tending to show the relation of the parties who met in New York to the subsequent meeting at Williamsport. A large discre
The third, sixth, seventh, eighth, twelfth and sixteenth assignments relate to similar objections as to the admissibility of evidence, some of it relating to acts and declarations of the alleged co-conspirators after the conspiracy was executed. We have given careful consideration to the evidence in all of these assignments and are not convinced that the court was in error in its admission. The court could not declare that the matters introduced by the commonwealth were not in contemplation by the parties at the time the agreement was entered into at Williamsport. The jury might well infer from the conduct of the appellants and from the action of Blackburn in paying the money to Moyer, if, as the jury has found Scholl and Spencer knew of that payment, and from the delivery of the possession of all of the property to Blackburn and his associates, that the defendants contemplated some use of the property not consistent with good faith or honesty. The examination objected to in the fourth and fifth assignments was a matter within the discretion of the court. Blackburn was the witness. It was alleged in the indictment that he was a co-conspirator with the defendants. He had formerly testified in the preliminary hearing before Esquire Batzle on the information against the appellants, and apparently for the purpose of refreshing his recollection as to a particular matter his attention was called to his examination before the magistrate. He had also been a witness in a quo warranto proceeding against the National Protective Association in Dauphin county and his attention was called to a portion of the evidence given at that time. We are unable to see from an examination of all of the evidence that this reference to the former testimony of the witness prejudiced the defendants in the slightest degree, and in the absence of evidence that the discretion of the court was
The ninth and tenth assignments are not pressed and need not be considered. We find no error in the admission of the evidence there excepted to.
The admission of the certificate from the insurance department of the commonwealth that the American Patriots located at Springfield, Illinois, had never registered in the department of insurance in Pennsylvania was not erroneous. It is not now pretended that the arrangement said to have been contemplated between Blackburn and his associates and the American Patriots was ever carried into effect, nor is it alleged that that organization had authority to do business in Pennsylvania.
Objection is made in the fourteenth assignment to the admission of the evidence of Mr. Larrabee, receiver of the National Protective Association appointed by the court of common pleas of Dauphin county, showing the steps he had taken to locate the property of the National Protective Association and to what extent he had recovered it. As the indictment charges an unlawful and fraudulent appropriation of the assets of the National Protective Association to the prejudice of its members as the object of the conspiracy it seems a pertinent line of inquiry in support of the conspiracy charged to show that the property of the association had been embezzled or dissipated. That would be persuasive evidence of the fact of the existence of the conspiracy. The witness was not called to prove declarations of alleged co-conspirators or other parties after the completion of the conspiracy to establish the guilt of the defendants but to show, as far as he knew, the situation of the property at the time he was authorized
Objection is made in the eighteenth assignment to the action of the court in refusing to withdraw a juror and continue the case because of the remarks of one of the counsel for the commonwealth in his address to the jury. The remark excepted to was this: “All of the defendants except one who did not go on the stand here admitted that the association was then in good condition.” The record does not show the context in which the language attributed to the counsel for the commonwealth was used, but it appears from the evidence that by agreement of the counsel for the commonwealth and the defendants portions of the testimony of Moyer and Scholl given in the quo warranto proceeding at Harrisburg were read by counsel for the commonwealth at the trial, from which testimony we learn that Scholl there testified that the National Protective Association was in “good shape” at the time when the property was transferred to Blackburn and his associates, and by him and Moyer that they had no knowledge at that time that the association was to be turned over to the American Patriots or that it was proposed to reinsure the members of the National Protective Association with the American Patriots and the remark of the commonwealth’s counsel seems to have reference to the testimony there taken. It is not consistent with the facts at the trial, for none of the defendants there testified that the association was in good condition. They were not called to testify on that or any other subject, and it could not have been understood by the court or the jury that the counsel was commenting on the fact that they had not appeared as witnesses in their own behalf at the trial. It is “adverse comment” which is forbidden by the statute. Where an attempt is made to excite the prejudice of the jury through the fact that the defendant did not testify in his own behalf the law protects the accused
The nineteenth, twentieth, twenty-first, twenty-second and twenty-third assignments bring up excerpts from the charge of the court. An application of the evidence to the charge fails to disclose such inaccuracies of statement as would justify a reversal of the judgment. The attention of the court should have been called to the fact that it was only in the letter of Moyer to Van Buskirk that it appeared that the conversation with Van Buskirk was had over the telephone by Spencer, one of the defendants. It was stated, however, in the charge to the jury that it was in a declaration in this letter that Spencer appeared to have had the conversation. As the subsequent evidence connected Spencer directly with the transfer of the control of the association to Blackburn and his associates this slight inaccuracy could have had no effect on the minds of the jury. The court did say to the jury that after Van Buskirk received a letter from Moyer inviting him to a conference it was agreed that the control of the association might be turned over to any purchaser for the sum of $25,000. It was not disputed at the trial that the first proposition of Moyer was to turn over the control of the company to Van Buskirk and those whom he represented for $25,000. Blackburn, who was to put up the money, was a stranger, to Moyer as were Blackburn’s associates, and the court was not wide of the mark, therefore, in saying that it was agreed that the control might be turned over to any purchaser for the sum of $25,000. As no one, however, was willing to pay $25,000 for the property it is not apparent that any prejudice resulted to the defendants.
The twenty-fourth and twenty-fifth assignments challenge the answers to the third and seventh points submitted by the defendant’s counsel. These points present the proposition that if the appellants resigned as directors of the protective association for the purpose of giving Blackburn and his associates control and for the purpose of reinsuring the membership in the American Patriots or some .other strong responsible company then such purpose was not unlawful and the verdict of the jury must be “Not guilty.” The court refused the points for the reason that, if it were the intention of the parties to give a reinsurance, that would not justify the defendants in converting the assets of the association to their own use if they did so convert them. If the defendants received the consideration for resigning which is alleged and gave control of the association and its assets for which they were the trustees to strangers to the association with an opportunity to the latter to make such use of its assets as they saw fit and to embezzle them as appears to have been done to some extent at least, the court could not with propriety have affirmed the appellants’ points. The expectation of the defendants that Blackburn and those acting with him would reinsure the members of the protective association with some other company did not justify the conduct of the defendants as shown by the evidence and found by the jury. By the twelfth point the court was requested to charge the jury that the commonwealth had failed to make out a case and the verdict should be for the defendants. The evidence is voluminous, and we have examined
The judgment is, therefore, affirmed and the record remitted to the court below to the end that the sentence be carried into effect.