Commonwealth v. Hazlett , 16 Pa. Super. 534 ( 1901 )

Opinion by

W. D. Porter, J.,

The purpose of the Act of May 9, 1889, P. L. 145, was to protect all depositors, or intended depositors, from imposition by bankers who, knowing the bank to be insolvent, continued to receive deposits. The act made unlawful is to “ take and receive money from a depositor with the knowledge that .... the bank is at the time insolvent,” and a part of the punishment prescribed is “ a fine in double the amount so received.” This legislation was not merely aimed at the carrying on of business by an insolvent bank, but it dealt with specific acts and measured the punishment, in part, by the amount of money obtained by the offender as the result of each specific violation. A banker, who, under the forbidden conditions, receives deposits from two or more different persons, upon the same day, is guilty of two or more separate and distinct offenses. An indictment charging such unlawful receipt of money from A would not be supported by proof of such a receipt of money from B. Neither a conviction nor an acquittal, upon such an indictment, charging a deposit to have been made by one person, is a bar to a subsequent prosecution charging a distinct deposit made by another person: Commonwealth v. Rockafellow, 3 Pa. Superior Ct. 588. The special plea in bar interposed by the appellant at the trial, had subsequently to the former appeal in this case, relied upon the same record which we held, in Commonwealth v. Hazlett, 14 Pa. Superior Ct. 353, not to constitute a bar to the present prosecution. As to the inefficacy of that record to protect the defendant nothing can be profitably added to the opinion of President Judge Rice, who spoke for the court upon the former appeal.

It is contended that a different question is now presented, for the reason that the plea last filed, while still based upon the same record, contains further averments. It has been argued, with great ability, that, the commonwealth having demurred to the plea, the averments in addition to the record are to be taken as true. On demurrer to a plea in bar the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled thereto : Murphy v. Richards, 5 W. & S. 279; Heikes v. The Commonwealth, 26 Pa. 513. Whether the former acquittal was for the same offense depends upon the record pleaded, and not on the argument or inference deduced therefrom. The plea averred the offense to have been the same, but the effect of this was to change the record, and the record must stand: Commonwealth v. Trimmer, 84 Pa. 65. Upon the trial of the issue formed by the record pleaded in bar the burden was upon the commonwealth to prove that the defendant had, as a banker, and knowing himself to be insolvent, received a deposit from one J. Clark Allen. A failure to prove a deposit by Allen must have resulted in a determination of the issue adversely to the commonwealth. The evidence necessary to a conviction in the present prosecution would not have been sufficient to convict of the offense charged in the record pleaded in bar. The defendant in the plea now presented seeks to avoid this rule by averring that upon the trial of the former indictment he admitted that he had, as a fact, been a banker, and, as such, received from Allen the deposits charged in the indictment, and that, therefore, the only question of fact passed upon by the jury in that case was the insolvency of the defendant and his knowledge thereof. Here, again, the averments came into collision with the record, which was the cornerstone of the plea in bar. The record showed a plea of not guilty and the general issue, under which the jury must, in some manner, be satisfied beyond a reasonable doubt that Allen had made a deposit in the bank. If the defendant went upon the witness stand and made admissions, those admissions were evidence to be considered by the jury, but they were not conclusive. Allen may have gone upon the stand and testified that he had never made such a deposit. The jury might have been convinced that the defendant was not mentally responsible at the time he testified. It may have been clearly established that, although the deposit was made, it was not received with fraudulent intent and was returned to the depositor, or that the defendant had fully informed Allen as to the condition of the bank. The fact still remained one for the jury to pass upon under the issue. It cannot be said that the verdict of the jury did not turn upon that very question. The first and second specifications of error are dismissed.

The motion of the defendant to dismiss the jury and continue the cause on account of occurrences which resulted from' the alleged talking about the case by one Gray, in the presence of a juror, raised a question in disposing of which the court below was vested with discretionary powers. An appellate court will not reverse upon such a question, unless an abuse of discretion be distinctly charged and clearly established. There does not appear to have been any abuse of discretion by the learned judge of the court below. The same principle applies to a refusal to continue a cause upon the ground of the absence of a witness. The third, fourth and fifth assignments of error are not sustained. •

The sixth and seventh specifications of error are based upon a slip of the court in stating the evidence. The attention of the court having been called to this matter, the mistake was corrected and the defendant was not thereby injured. If the facts stated in the language of the court which is the subject of the eighth assignment of error were found by the jury, they constitute sufficient evidence to justify a finding that the defendant was insolvent, and this specification is without merit.

The ninth specification assigns for error a single sentence, covering two pages of printed matter, contained in the charge of the learned court below. A page and a half of this sentence recites the theory of the commonwealth, and the contention of the counsel for the prosecution as to the force and effect of the evidence of the commonwealth and the weakness and incredibility of the testimony offered by the defendant, and seems to fairly state what had been the contention of such counsel. The difficulty comes in the concluding part of the sentence, where the court instructed the jury as to the effect of the incompetency of the testimony of two witnesses of the defendant upon all the other evidence produced by him. The court had just recited the allegation of the commonwealth as to the testimony of the witnesses White and Little; that those witnesses had based their ■ evidence as to the value of three pieces of real estate not upon the market value, but upon what they proposed to pay for the property in certificates of deposit of the defendant bank, which were then selling and being offered for sale at from fifty to seventy-five cents upon the dollar of their face value. In immediate connection with this reference to the testimony of Little and White, the court said: “And if this is found by you to be the case, then, under all the evidence, including the defendant’s testimony, the estimates of value are not founded upon the proper basis and the values of these three pieces of property would not be greater, in fact, than the value placed thereon by the commonwealth ; all of this affects the values placed on the whole of the defendant’s property by himself and son, and all other of his witnesses testifying to values not based on fair market values ; and that you should have no trouble in coming to the conclusion that the defendant was insolvent on March 12, 1898.” This was, in effect, saying to the jury that if the testimony of White and Little as to the value of that real estate was based upon what they would have paid for it in depreciative certificates, that fact vitiated the testimony of the defendant, and all the other witnesses of the defendant, not only as to the value of the three specific properties, but.as to that of the whole of the defendant’s property. Even if the testimony of White and Little as to the values was not based upon market value, the jury were not bound to accept the opinions of the witnesses for the commonwealth. It was for the jury to determine what the property was worth, in view of its character, condition and location, and the opinions of those who were supposed to have an expert knowledge upon the subject were offered as evidence to be considered by the jury in arriving at their conclusion. The competency of the witnesses to testify as experts is supposed to have been settled when their testimony was offered. The ninth specification of error is sustained.

In that part of the charge embraced by the tenth assignment of error we find this language : “ The testimony of Mr. M. W. McClane, to which the defendant calls our attention, was as to the value of the Hamilton farm. He put it at $125 an acre, but he said that is what he thought it worth. He thought it ought to bring that, but he did not say that was its value in the real estate market at a fair open sale, and he didn’t fix his estimate from the basis of a market value.” A careful reading of the testimony of the witness in question leads us to a conclusion different from that at which the learned court below arrived. The witness did say that he was acquainted with the market value of farm land in that community in March, 1898. He was asked what was the fair market value of that particular farm, at that time; he was permitted to answer the question without objection. His answer was: “ I should think it worth $125 per acre.” Yet the learned judge of -the court below said to the jury that this witness did not fix his estimate from the basis of a market value. The jury had already been told, in that part of the charge considered under the ninth specification of error, that such evidence not founded upon market value was not upon the proper basis, and, practically, that the jury were to disregard it. Considering these instructions, in the light of each other, the jury must have concluded that the court intended to say to them that the testimony of McClane was not worthy of consideration. “ The value of an expert’s opinion may be fortified on the one hand or reduced on the other by an examination as to his general experience, his means of knowledge in the particular case, and the facts and reasons on which he bases his conclusion. It is a matter of opinion at best, and the lowest grade of evidence that comes into a court of justice. It is permissible only because, bad as it is, there is nothing better.attainable. Opinions as to the value of real estate are apt to differ, and their value is not always in proportion to the confidence with which they are advanced: ” Dawson v. Pittsburg, 159 Pa. 317. The only competent evidence as to the value of the farm in question, which had been introduced upon either side, consisted of the opinions of witnesses, as to the market value of the land, based upon the selling price of land of like character in the vicinity; that is, what the witnesses, respectively, thought the land would bring in the market. This was, in every case, a mere matter of opinion, and the value of the opinion was for the jury. A witness who has no knowledge upon the subject of market value, derived from the prices at which lands are held and sold in the vicinity, is not competent to testify as an expert on such a question. The tenth assignment of error is sustained.

The eleventh assignment of error is without merit. A banker whose business is managed by others may be deceived as to the true condition of his affairs, and be insolvent without knowing it. His knowledge of his insolvency is an essential element in the offense with which this defendant was charged. It was proper to permit the witness, R. S. Winters, who had been one of the appraisers of the insolvent estate, when confronted with the appraisement which he had made, to make an explanation as to the manner in which they had arrived at the values of the property appraised.

In the ruling which is complained of in the thirteenth specification, we are convinced that the learned judge of the court below fell into error. The witness was called for the purpose of proving the value of certain stock, and candidly admitted that he knew nothing about the value of the stock at the time of the assignment. He said that he had made an investigation subsequently to the assignment. It would clearly have been competent to permit this witness to state to the jury what properties were owned by the corporation, and, if he knew, the value thereof; the liabilities of the company, and, if he had personal knowledge thereof, the condition of its affairs. The witness did not pretend to any expert knowledge which made him more competent than any member of the jury to form an intelligent opinion upon the facts. The witness was permitted to testify, under objection, that he had had an interview with Elliott Rogers, Esq., who was the secretary of the mining company,.and from that interview he had arrived at the conclusion that the stock was worthless. There was no evidence that Mr. Rogers had any knowledge of the properties owned by the company, or of the value thereof. The secretary of a corporation does not, necessarily, know the value of its properties. This stock was not one dealt in on the open market. Mr. Rogers would not have been permitted to testify, as to the value of the stock, without first showing that he had personal knowledge of the condition of the affairs of the corporation. The evidence shows that Mr. Rogers was within the reach of the subpoena of the court. If his knowledge was to be made available for the prosecution in this case, the defendant was entitled to cross-examine him as to the extent of his knowledge, before he could have been permitted to give an opinion as to the value of the stock. Yet the learned court below permitted the witness called to give an opinion founded upon the opinion of another person not called, without any attempt whatever to show that either the witness or his informant had any knowledge which rendered either of them competent to testify as to their opinion of the value of the property in question.

The evidence which is the subject of the fourteenth specification was properly admitted. The witness was permitted to testify to the facts which he himself had communicated to the defendant prior to the alleged commission of the offense charged.

The fifteenth specification is equally without merit. When a witness has been permitted to testify as an expert as to the values of real estate, a reasonable latitude is allowed for cross-examination, in order that the jury may be fully informed as to the facts upon which the opinion of the expert is based and the processes of reasoning by which he arrives at the conclusion given.

The judgment is reversed and a venire facias de novo awarded.