97 Pa. 336 | Pa. | 1881
delivered the opinion of the court, March 28th 1881.
The indictment charges that Jacob Huntzinger, president, and J. Albert Huntzinger, cashier of the Miners’ Trust Company Bank, of Pottsville, a corporation, did conspire to cheat and defraud Thomas E. Kerns of twenty-four thousand dollars by means of falsely and fraudulently representing to said Kerns that said bank was solvent, and able to pay all its liabilities, and thereby inducing him to deposit in said bank the said sum of twenty-four thousand dollars, whereas the said Jacob and J. Albert, president and cashier as aforesaid, well knew said corporation was wholly insolvent, and unable to pay its liabilities. Of this conspiracy the defendants were convicted and sentenced to imprisonment, to pay a fine, to pay the costs, and to restore or pay to Thomas E. Kerns twenty-four thousand dollars. The sole question is, whether the indictment supports a judgment of restitution. It is not now and here gainsaid that the judgment in all other respects was right.
The offence of conspiracy is clearly and sharply set forth in each of the two counts in the indictment. Had Kerns not lost a dollar, on proof of the alleged conspiracy the defendants could have been as well convicted on the first as the second. In the first count only the means for accomplishment of their purpose are stated, namely, false and fraudulent representations to Kerns respecting the solvency of a corporate bank,' thereby inducing him to deposit twenty-four thousand dollars in said bank. It is obvious that the Commonwealth intended to state only th.e means intended to be used by the conspirators. Direct averment is not made that Kerns did deposit said money or that he lost the money. Certainly it cannot be inferred from anything in the indictment that the defendants themselves took or obtained the money, for it is a mere inference from the means they devised by which it may be said that the corporation got the money. If the part charging conspiracy be struck out, no crime or misdemeanor is stated in the indictment.
The conspiracy is complete when the parties have made the unlawful confederacy, and, therefore, it does not include another offence; as burglary is completed before other felony, which the burglar intended, is committed. Unless the crime besides the conspiracy, or the felony besides the burglary, be distinctly charged, there can be no conviction for anything but the alleged offence. These and like cases differ wholly from those where the greater include the less, or where by statute a person indicted for felony may be convicted of a misdemeanor. The Commonwealtlf could have preferred a count, charging the defendants with conspiracy,
The 179th section of the Crimes Act of 1860 is very broad, requiring in almost every criminal offence, including in its perpetration the obtaining of money or other valuable thing, in addition to the prescribed punishment, that the defendant shall be adjudged to restore to the owner such money or property, or pay him the value thereof. But the indictment must show that property was taken or obtained. It does this, of course, in robbery, larceny, false pretences and other crimes, which are not committed unless property be taken. Forgery is named in said section of the statute, yet one may commit forgery and not succeed in obtaining money or goods of another. Burglary is also named, but it is burglary of property, not burglary with intent to steal or do other felony. Conspiracy to cheat and defraud is not named, and if it is embraced it must only be when it has been executed. In every case, to support a judgment of restitution, the indictment must show that the money or other thing was actually obtained and taken by the defendant. This is as essential as that the indictment must show an offence punishable by a fine or imprisonment to support a judgment that the defendant pay a fine or undergo imprisonment. The record must be self-sustaining. A judgment without indictment or for an offence not charged in the indictment must fall. ■Divers statutes impose increased punishment on second conviction for certain offences, but unless the former conviction be stated in the indictment, the court cannot impose the increased punishment. Rauch v. Commonwealth, 28 P. F. Smith 490. In that case, Agnew, C. J., said: “On every principle of personal security and the due administration of justice, the fact which gives rightfulness to the greater punishment should appear in the record. To leave a judge to determine outside of the record is to subject the defendant to an unconstitutional mode of trial.” And this language is just as apposite, whore judgment of restitution is claimed, if the indictment does not charge the taking or obtaining of the thing asked to be restored.
It is scarcely necessary to remark that this case must be determined by the record. We are not unmindful of the argument on the part of the Commonwealth, but we fail to see how the points submitted by the defendants at the trial, and the charge of the court can have other effect than to induce care in consideration of the points now presented.
Nor is the narrative of the conduct of the Huntzinger family a prop to the judgment. Nor has there been a previous adjudication by this court. An allowance or refusal of a writ of error is not an
The part of the judgment in these words, “that you (Jacob Huntzinger and J. Albert Huntzinger) restore and pay to the prosecutor, Thomas F. Kerns, the property of which he was defrauded, to wit, the sum of twenty-four thousand dollars ($24,000), unless you have already done so,” is reversed.
