Commonwealth v. Altland , 79 Pa. Super. 43 ( 1922 )

Opinion by

Porter, J.,

We have here appeals by the defendants, respectively, from their conviction in the court below upon an indictment in which they were jointly charged with conspiracy to cheat and defraud Aaron F. Altland, Reilly Bros, and Raub and others. The defendants were jointly tried in the court below and their several appeals may properly be disposed of by one opinion. John H. Altland was the keeper of a general store and had become involved in debts to an amount which exceeded the value of his property. He was, in September, 1921, tried in the court below upon an indictment charging him with having unlawfully secreted, assigned, conveyed and disposed of his property with intent to defraud his creditors and to prevent such property from being madé liable for the payment of his debts, which trial resulted in his acquittal. There was at the same time pending the indictment, from the result of the trial of which we have the present appeals, and which was tried in November, 1921. Under the evidence produced by the Commonwealth the ownership of certain goods which were found in the station-house of an abandoned railroad at Goshen and the manner in which those goods found their way to that place became material, if not controlling, questions as to the guilt or innocence of these several defendants. The unlawful act which the Commonwealth sought to establish by evidence that the defendants had conspired to do was to defraud the persons named in the indictment, as creditors of John H. Altland, and that the way which they had adopted to effect that end was to remove and secrete his property, and thus prevent his creditors realizing their claims out of it. The question which arose, under the evidence, was thus submitted to the jury by the learned trial judge: “If you believe, from the evidence, that the goods belonged to J. H. Altland, and that the three defendants conspired together, and, by reason thereof, they were taken to the Goshen station house to defraud the creditors of J. H. Altland, then you may convict them, or any two of them, of the offense charged in the indictment.” The fact that John H. Altland had been acquitted upon the indictment charging that he had unlawfully secreted, assigned, conveyed and disposed of his property, with intent to defraud his creditors, renders it necessary to consider separately the assignments of error which have relation to his appeal.

It is not necessary in order to render the offense of conspiracy complete that any overt act should be done in pursuance of the unlawful agreement, or that any one should be aggrieved or defrauded in consequence thereof; Com. v. Richardson, 42 Pa. Superior Ct. 337, which was affirmed by the Supreme Court on the opinion of President Judge Bice. The acquittal of John H. Altland determined the fact that he had no part in the actual secreting of his goods and every other fact necessarily found in reaching the conclusion as to that ultimate fact: Altenburg v. Com., 126 Pa. 602. That verdict did not, however, determine that he had not conspired to do so, for, as shown by the authority above cited, he might be guilty of conspiracy although no act was done in pursuance of the unlawful combination. His acquittal upon the former indictment could not be effective, as a bar to the present prosecution, and we do not understand the learned counsel for the appellant to so contend, nor is the question raised by the specifications of error. Whether that record was competent evidence, under the facts developed by the testimony of the Commonwealth, is an entirely different question, which is properly raised by the first assignment of error. While it is not necessary, in conspiracy, to prove that any overt act has been committed, the acts of each of the parties charged, with regard to the subject-matter thereof, are evidence against that particular defendant. It is not necessary to prove that all the parties had met to conceive the scheme, nor to prove by whom it was originated: Roscoe’s Criminal Evidence, 415. The Commonwealth must in nearly all cases rely upon evidence establishing that two or more persons pursue by their acts the same object, often by the same means, one performing one part of an act, the other another part of the same act, with a view to complete it, and to attain the object which they are pursuing; the acts of each must necessarily be proved separately, and such acts are evidence against that particular defendant. The fact that a conspiracy exists may be inferred by the jury, from the fact that the acts of the several parties are manifestly done in pursuance of an unlawful combination: Com. v. Sanderson, 40 Pa. Superior Ct. 416; Com. v. Snyder, 40 Pa. Superior Ct. 485. The Commonwealth, in the present case, sought to establish the guilt of J. H. Altland in this very manner and was compelled to rely chiefly upon the testimony of a witness that he had been present when the goods in question were secreted in the station house at Goshen and that John H. Altland was there present taking part in the proceeding. The jury was to be asked to infer that he was guilty of conspiracy, because of the fact that he had actually taken part in concealing the goods. This evidence was material, and it was certainly competent for the defendant to contradict it. The verdict of the jury at the trial upon the first indictment conclusively determined that John H. Altland had not taken part in concealing the goods in the Goshen station, and the record of that acquittal was competent evidence. The first specification of error is sustained. The only evidence offered by the Commonwealth tending to establish that John H. Altland had been guilty of conspiracy was that which related to his actual participation in secreting the goods in Goshen station. The Commonwealth having elected to first try him upon the charge that he had actually taken part in the secreting of those goods is bound by the result of that trial. Unless, upon another trial, the Commonwealth shall produce other evidence tending to establish that he had been guilty of a conspiracy he will be entitled to an acquittal upon that charge.

The declarations of Charles P. Altland were admissible in evidence against himself and the evidence embraced by the third specification of error did not relate to any other person. That specification is, therefore, overruled. The finding of the former jury that John H. Altland did not participate in the actual concealment of the goods had no bearing upon the question whether the other defendants had been guilty of the conspiracy charged. The evidence was sufficient to warrant a finding that Charles F. Atland and C. W. Altland had been parties to the conspiracy charged in the indictment and the specifications of error which relate to their respective appeals are dismissed.

The appeal of Charles F. Altland is dismissed and the judgment affirmed and it is ordered that he appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time his appeal was made a supersedeas.

The appeal of C. W. Altland is dismissed and the judgment is affirmed and it is ordered that he appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time his appeal was made a supersedeas. The judgment against John H. Altland is reversed and a venire facias de novo awarded.