16 Pa. Super. 588 | Pa. Super. Ct. | 1901
Opinion by
The appellants were convicted under an indictment charging them with conspiracy to cheat and defraud the borough of Shamokin. The facts are to be gathered from some 1,200 pages of printed testimony submitted by the commonwealth, — the defendants offering no evidence. Thirteen persons were originally indicted. Two were not tried. Three were acquitted. Eight were convicted and now appeal. Of the eight, five were members of the borough council, viz: Zuern, Holl, Reed, Reppard and Zimmerman, and three, Dixe.y, Rothschild and Boas, were alleged to be interested in procuring contracts for street paving for which bids were invited by the borough.
We have reached the conclusion that the judgment of the court below, as to the five members of council, must be affirmed, and that as to the three other defendants, it must be reversed. The first conclusion involves passing upon a large number of assignments of error. The second does not. We, therefore, take up the discussion of the second branch of the case first.
We are of opinion that the judgment as to Dixey, Rothschild and Boas should be reversed because the testimony offered by the commonwealth does not sufficiently connect them with the conspiracy charged. No common design, concert or combination is shown either between these three or between them, or any of them, and the convicted councihnen. Dixey represented the Alcatraz Paving Company, which was desirous of securing the work of laying the pavement upon the several streets of the borough. Boas represented the Montello Brick Company, which desired to furnish the brick for said pavements and was in competition with the Clearfield Brick Company, the Canton Brick Company, and a large number of others. Rothschild, a clothing dealer in Shamokin, was alleged to be an
Assuming that there was a conspiracy shown among the councilmen to cheat and defraud the borough of Shamokin, it was incumbent upon the commonwealth to prove a participation in the common project or design, by the three defendants named, in order to convict them. The indictment is general in its terms. It charges that all the defendants “ fraudulently, falsely, maliciously and unlawfully did conspire, confederate and agree between and among themselves to cheat a-nd defraud the borough of Shamokin .... of its moneys, goods, chattels and other property.” The learned trial judge, in his opinion refusing to arrest the judgment, says that “ the allegations of the commonwealth are that the conspiracy was to control the awarding of brick or paving contracts by bribing members of council.” The theory of the commonwealth, by which the three defendants, named are to be brought within the indictment, seems to be that the competitive bidders upon the paving w5rk and upon the material for the work, joined each other and the councilmen of the borough in such an arrangement that the work upon the several streets to be improved should be portioned out among the several bidders, and that the councilmen should be paid for carrying this arrangement into effect by legislation. This required evidence connecting the several bidders with such an arrangement in order to hold them. But the commonwealth’s evidence shows, if the witnesses are to be believed, that there was a condition of competitive bidding. Each of the several concerns was anxious to secure for itself as much of the work as possible. No evidence was adduced showing that they met in conclave to apportion out the several contracts. If corrupt solicitation was used, it would seem that it was not to procure legislation effecting an apportionment of the work among the several bidders, but solicitation which looked to the procurement by each of the separate bidders or material men of a larger portion of the work to be done or of the materials to be furnished than that awarded to his competitors. The business concerns interested in the bidding were numerous. The representatives of some of the bidders were not indicted in this proceeding.
The Act of April 10, 1867, P. L. 62, requires the president judge and jury commissioners to meet thirty days before the first term of the court of common pleas in every year, “ and thereupon to select alternately from the whole qualified electors of the county the number designated by the court, of sober, intelligent and judicious persons to serve as jurors in the several courts of the county during that year.” It is alleged that from the facts exhibited to the court, a violation of this act of assembly was shown. It is contended that by inspection of the venires it appeared that some eighty or more names were taken from the previous year and placed in a block in the wheel for the coming year. The appellants themselves say, however, that this is the only “ probable inference ” to be drawn from the venires. The question whether or not the jurors were properly drawn cannot be determined on a basis of such an inference. No proof was submitted showing that there was a transfer of the names from wheel to wheel in bulk. The statement of fact in the motion was attested by an affidavit on information and belief, but no attempt was made to definitely prove that there was a transfer of names in bulk, or any of the facts alleged in the motion. The learned trial judge was warranted, in the absence of satisfactory proof that the provisions of the
Under the second assignment of error the appellants urge that the trial judge committed error in refusing the petition of the defendants for an order upon the district attorney to furnish a bill of particulars. The indictment contained two counts, charging the defendants with conspiracy to cheat and defraud the borough of Shamokin. The counts are substantially the same, except that the first concludes as a common-law count, and the second, a violation of the act of assembly. It must be admitted that the indictment was general in its terms. It may be that had the learned trial judge been able to foresee the somewhat intricate facts presented by the huge bulk of the commonwealth’s testimony, he would, not only in aid of the defendants, but for the assistance of the court, have simplified the issues by directing a bill of particulars to be filed. It is possible, however, that this suggestion may have its birth in the labor in which this court has been involved in its review of the case. At all events, the matter of granting or refusing a bill of particulars lies within the sound discretion of the trial judge. The defendants were not entitled to demand the bill ás a matter of right. We are not prepared to say that the learned trial judge improperly exercised the discretion with which he was clothed. It does not appear that the defendants were surprised by any unexpected proof submitted by the commonwealth. It does appear by the petition for the bill that the defendants desired to know the “ specific matters which will be attempted to be proved against them.” The prayer of the petition is that the district attorney be directed to “ file a bill of particulars of matters they propose to prove in this case.” These requests were in effect for a specification of the evidence to be adduced by the commonwealth. This the prisoners had not the right to demand nor the court to require: Commonwealth v. Buccieri, 153 Pa. 547. The second assignment of error is dismissed.
The remaining numerous assignments raise comparatively few questions requiring special notice. These may be discussed without direct reference to the assignments by number. The .first is whether the evidence presented by the commonwealth warranted a submission to the jury of the question as to the' guilt of the five councilmen of .the crime of conspiracy charged.
We pass to the inquiry whether the court rightly permitted testimony to be given of declarations made by alleged co-conspirators. The rule has been held generally to be that the declarations of a conspirator are evidence against himself and are also evidence against his associates when they are made during the performance of the fraudulent transactions which constitute the crime charged, for they then form part of such transactions, but when not made during the progress or continuation of the fraudulent scheme, but afterwards, they are not evidence: Heine v. Commonwealth, 91 Pa. 145; Weil v. Cohn, 4 Pa. Superior Ct. 446.
As we understand the argument for the appellants, it does not attack the rule but asserts that (1) there was not sufficient proof of a conspiracy when the court permitted the introduction of the proof of declarations ; and that (2) some of the evidence admitted was of declarations made after the conspiracy was at an end. The question, whether or not a conspiracy has been proven is for the jury, but it is manifest from the statement of the rule relating to the admission of declarations, that there is some point to be reached in the trial at which the trial judge is called upon to decide whether sufficient proof of a conspiracy has been adduced to warrant the introduction of evidence of declarations of conspirators. All of the evidence in the cause cannot, in the nature of things, be introduced at the same time, nor can it be foreseen by the trial judge. Again, where many defendants are being tried, it becomes a difficult thing to determine whether a particular defendant has been, by preceding evidence, so connected with the alleged conspiracy as to warrant the admission of proof of his declarations. The proof of the conspiracy at the point in the trial when the declarations are sought to be introduced, need not be conclusive, but only slight, in order to permit the introduction. See McDowell v. Rissell, 37 Pa. 168. In a civil proceeding it has been held that a division of the profits of the fraudulent transaction is sufficient evidence of combination in the first instance to render admissible the declarations of one conspirator against the rest: Kimmell v. Geeting, 2 Grant, 125. See also Commonwealth v.
The learned judge of the court below steered a skilful course amid the complications incident to the case on trial. We believe that he made no mistake when he admitted the proof of .declarations, but even if when admitted, the proof of conspiracy was weak, before the conclusion of the trial there was abundant proof to support his ruling as to the declarations and to carry the case to the jury on the questions of conspiracy and of implication therein. Under these circumstances, the error, if it was error, was corrected: 6 Am. & Eng. Ency. of Law (2d ed.), p. 869. The appellants further complain that declarations, made after the completion of the transactions with which the conspiracy was connected, were admitted. We agree with the court below in holding that the transactions were not completed. The conspiracy involved the distribution not only of moneys wrongfully procured, but also of other moneys payable after the paving contracts were paid by the borough. Some of the latter had not yet been paid when the declarations admitted in evidence were made. It may be that in order to secure their payment further legislation would become necessary. The conspiracy was not ended to the extent of shutting off the evidence admitted of declarations of conspirators: McCaskey v. Graff, 23 Pa. 321; Lowe v. Dalrymple, 117 Pa. 564; Helser v. McGrath, 58 Pa. 458.
Many assignments of error are founded upon parts of the charge of the court. Eliminating those parts which permit the jury to find Dixey, Rothschild and Boas guilty of participating in the conspiracy, the charge was clear, easily intelligible and free from reversible error. The appellants contend that the instruction of the court permitting the jury to find any two or more of the defendants guilty, was erroneous. It is not alleged that as a general rule such instruction would be improper. It is urged that there were several contracts before the court in respect to which some or other of the parties were interested;
The evidence was ample to warrant the conviction of the councilmen of the conspiracy charged, and the language of the judge in condemnation of their conduct, complained of as being unjudicial, was justifiable. His remarks upon the weight to be given to the evidence of the commonwealth, in the absence of any evidence whatever submitted on, behalf of the defendants, was not reversible error, especially as they were coupled with the notice to the jury that the credibility of the witnesses was for them. It is permissible for a judge in his charge to express an opinion upon the facts, provided he does not encroach upon the province of the jury (Commonwealth v. Winkelman, 12 Pa. Superior Ct. 511. See also cases there collected), and he is permitted to carry this to the extent of a free expression of opinion on the weight and value of the evidence, since he is the best adviser the jury can have : Fredericks v. Northern Central R. R. Co., 157 Pa. 128; Leibig v. Steiner, 94 Pa. 466.
There are a number of subsidiary question sraised by the appellants, but none which we regard as of sufficient importance to require special notice.
We sustain the fifty-first, fifty-second and fifty-third assignments of error and direct that the defendants, W. B. Dixey, Maier Rothschild and H. L. Boas, be discharged. We dismiss the remaining assignments and direct that the record be remitted and that the sentence imposed by the court below upon the defendants, E. O. Zuern, T. A. Holl, O. J. Reed, W. A. Reppard and W. S. Zimmerman, be carried into effect.