96 Pa. Super. 76 | Pa. Super. Ct. | 1929
Argued March 11, 1929. The defendant was charged in 37 indictments with bribery at common law and aiding and abetting the same, statutory bribery and extortion at common law and aiding and abetting the same (all in conjunction with Schoenleber), extortion from Peters, and extortion of sums of money from various saloon-keepers, with conspiracy to extort on twelve different occasions from Peters, conspiracy to extort money from saloon-keepers on twelve different occasions, and conspiracy to extort $12,195, the aggregate of the above sums.
The Commonwealth proved that sometime in February, 1928, defendant, Patterson, a member of the House of Representatives of the State, met Peters, who asked, "Are they going to collect?" and that Patterson replied, "As far as I know they are." A day or two later, Patterson met Peters and said to him, "They are going to collect $55 every two weeks." At the same time Peters was told that Joseph Ehrenreich, a young lawyer, would come and get the money from Peters and he was to collect from fourteen saloon-keepers who had their places of business in the 19th Ward of the City of Philadelphia. Peters collected approximately $12,195 in a period of six months in installments every two weeks of $55 from each saloon-keeper and turned the sum over to Ehrenreich. Ehrenreich's story is that Patterson instructed him to go to Peters and collect the money; turn over $1,240 to Charles Schoenleber, keep $300 for himself as a fee for his services, and retain the balance for him, Patterson. Ehrenreich collected the money, gave Schoenleber the sum agreed upon, put $300 in bank for himself and placed the balance either in the Textile National Bank or in the safe in his own office, holding it for the defendant, Patterson. He withdrew $251.44 of this money and bought for Patterson at his direction, two round trip tickets to the Republican National Convention at Kansas City, at which convention Patterson *79 was a delegate. This is the substance of what the Commonwealth proved at the trial.
There are 65 assignments of error. The appellant's counsel has divided them into seven groups.
1. Complaint is directed to the act of the court in sustaining the Commonwealth's challenges to two jurors on the ground that they were employees of the City of Philadelphia. We find no error in this act of the court. The defendant was not entitled to any particular juror or set of jurors: Com. v. Morgan,
2. It appears that Francis J. McKeown was called by the Commonwealth as a witness. In the course of *81
his testimony this witness made the startling assertion that in an interview with the prosecuting attorney, he had been importuned to make statements in conflict with the facts which would tend to fasten criminal responsibility upon the defendants then on trial. At the conclusion of the testimony, the court instructed the crier to take the jury to their room and in their absence, the court instituted an inquiry. Two witnesses who were present in the district attorney's office at the time the alleged statement was made and the stenographer who made notes of what was said, all testified that the statement attributed to the district attorney was not made. The court then sitting as committing magistrate, held the witness in bail to appear at court to answer the charge of perjury. The jury was then brought in and the case proceeded, the jury at no time during the trial being allowed to separate. The appellant claims that this was prejudicial to him in that it prevented him securing from the witnesses yet to be called a fair and true recital of what knowledge they possessed and that it also minimized the evidence given by McKeown to the jury and placed upon it the disapproval of the court and amounted to a practical direction to disregard it and discredit it. We do not attach the same effect to the action of the court. If any impressions were made by the act of the court upon the witnesses present, it was to induce them to tell the truth. The mere fact that the jurors were withdrawn from the room did not convey any intimation to them of what was going on. Appellant's counsel has indulged in some surmises as to what passed among the jurors after they were taken out, but that is mere guess work which does not help in the decision of the question. The committment of the witness in the presence of the jury would be of doubtful propriety, but is not error which is prejudicial where the committment is made without the knowledge of the jury. 26 R.C.L. 1020-1021. *82
Our court has decided in Com. v. Salawich,
3. Joseph L. Ehrenreich called for the Commonwealth, was cross-examined by Mr. Scott, defendant's counsel. He was asked whether he had any conversation with the members of the district attorney's staff and whether or not a promise had been made to him. He testified that he made the statement to the district attorney, "I am going to get on that stand and I am going to tell the truth," and that the district attorney replied, "That is what you should do." The district attorney said, "Did I ever make any promises to you?" and he answered, "No." Mr. Scott then interjected the remark, "I thought that." The district attorney said, "You thought that? With a bootlegger spy sitting in the room." There was an instant objection taken to this remark and a request for the withdrawal of a juror which request was overruled. The court then addressed the jury: "Whatever the counsel for defendants, or the district attorney may have said, in anger, or any other way, in that colloquy, you will be careful to dismiss from your minds and pay no attention to. Sometimes in the heat of a battle people say things they should not say. Now, do not let it weigh for these defendants or against these defendants, one way or the other; dismiss it from your minds, and I instruct you particularly to do so."
What is excusable conduct for a prosecuting attorney depends somewhat on the surroundings and the atmosphere of the trial: Com. v. Torti,
4. Several assignments of error are to the admission of testimony by one, Stephen Bungert. He stated that Peters told him that he was to pay $55 every two weeks for protection and that the protection to be furnished was police protection. What Peters said in the absence of Patterson to the contributing saloon-keepers about protection, it is claimed was hearsay and its admission error. Certainly in the proof of the crime of extortion, it is proper to the direction of the defendant, it becomes his act. It prove the act of extortion. If done by someone at is a fact in the case which is material to the charge, but which requires the connection to be established between the agent who did the actual extorting and the defendant. There must be a link in the chain of proof before the testimony is of value, but that link need not precede the proof of extortion, but is essential to the Commonwealth's contention. There was abundant evidence in the case, if believed, to connect Patterson with these acts.
The situation presented is in some respects like that in Com. v. Swift,
5. There were eighty-two points submitted to the court in behalf of Patterson. Fortunately but few require notice. The 70th and 73rd points, read as follows: "No. 70. Unless the jury are satisfied that the witness, Peters, was a co-conspirator with the defendant, Patterson, they must render a verdict of not guilty as to the defendant, Patterson, on the charge of conspiracy if the testimony offered by the Commonwealth without the aid of testimony of Peters as to statements made or transactions which took place in the absence of the defendant, Patterson, is insufficient to enable them to find beyond a reasonable doubt that the defendant, Patterson, was guilty of conspiracy." "No. 73. In considering the charges of conspiracy made by the Commonwealth against the defendant, Patterson, the jury should give no consideration to any evidence given by the witness, Peters, and the witness, Ehrenreich, as to declarations made in the absence of the defendant, Patterson, unless the jury are satisfied beyond a reasonable doubt that Peters and Ehrenreich, or either of them, entered into a conspiracy with the defendant, Patterson." The trial judge refused to affirm the points and properly so. He has these comments to make on them, "The principle of law which it is contended these points announce is not clearly set forth in them. Assuming that they do sufficiently set forth the principle contended *85
for, however, it is evident that to have affirmed them would have been tantamount to a direction to the jury to disregard practically all the vitally necessary evidence in the case, and would have permitted a conviction only if the defendant was present at every stage of the criminal transaction — a manifest absurdity, which would defeat the fundamental rule that, from the cooperative character of the independent acts of the different parties to a transaction, the existence of a conspiracy may be inferred: Ballantine v. Cummings,
The conversations, which were held between the saloon-keepers and Peters, who collected the bribe money as we have already stated, were the oral communications by which the extortion was committed, and were, therefore, as the trial judge stated, "overt acts in furtherance of the conspiracy, and the very gist of the offense." With a single exception, no conversations in the absence of the defendant were given in evidence, which named the defendant or referred to him in any way. The exception was the testimony of Peters, that, when Ehrenreich first went to him to get the bribe money which had been collected, in order to deliver it to Captain Schoenleber, Ehrenreich told Peters, in effect, that he was there at the direction of the defendant, Patterson. The importance of this testimony vanishes in view of Ehrenreich's testimony that the defendant had sent him to Peters, and the defendant's own admission that he had brought Ehrenreich and Peters together.
6. Defendant's counsel argues that the defendant was convicted of more than one crime arising out of the same occurrence. A general verdict of guilty on an indictment containing various counts is often open to this objection, but, as in this case, if there be one *86
count to sustain the sentence, it is enough, Com. ex rel. Biscetti v. Leslie Warden,
7. The last question submitted by the appellant is, was there error in failing to charge as to the effect to be given to cross-examination of witnesses called to establish good reputation.
The charge sufficiently referred to the value to be given to evidence of good reputation. There was an allusion made to some trouble about the Files' brewery and Patterson's name was mentioned in connection therewith, but there was nothing elicited to his detriment unless the mere mention of his name might be so considered. If the defendant's counsel wished the court to develop the fact that the testimony could not be made the basis of an inference unfavorable to Patterson, a request to that end should have been made.
All the assignments of error are overruled. The judgment is affirmed.