Commonwealth v. Brown , 58 Pa. Super. 300 ( 1914 )

Opinion by

Kephakt, J.,

There is no complaint that there was not sufficient evidence to warrant the jury in returning a verdict of guilty. The defendant was charged with the crime of conspiracy. The principal witness for the commonwealth, Ginsburg, was one of the conspirators. He was the owner of two retail shoe establishments in Philadelphia, the stock in which was valued at $18,000. Being in need of money to pay the season’s bills, he asked Brown, the defendant, for a loan of $1,000. Brown replied that he was “foolish to borrow money,” that he “could fail and make a bunch of money.” At the last meeting between Ginsburg and Brown, the following arrangements were made: Ginsburg was to pack the stock of shoes in cases, leaving the empty boxes in the stores; the cases were to be taken to Norristown and shipped from there to New York beyond the reach of creditors; Ginsburg was to secrete himself while Brown returned to Philadelphia to make settlement with Ginsburg’s creditors, for ten, fifteen and twenty-five cents on the dollar; the goods were to be shipped to New York, consigned to Kramer & Company, Brown, and a fictitious consignee Johnson, a name used by Brown. In pursuance of this plan the goods were packed, Brown assisting in the packing, and shipped under the names of fictitious consignors to the parties in New York above named. The bills of lading were turned over by Ginsburg to Brown, and in New York Brown gave them to a driver with instructions to move the goods from the freight station to the building of Kramer & Company. This was done. Brown paid the drayage, and having the goods in his possession he promptly dismissed Ginsburg, telling him to “get out.” Brown secured, at his own expense, barrels in which to repack the shoes and he shipped them from Kramer & Company to Buffalo and other points. The goods were subsequently retaken by Ginsberg’s receiver in bankruptcy. Ginsburg was hopelessly insolvent, and from a statement submitted to Brown he knew of his condition.

The assignments of error complain of the charge of the court: in not properly defining a conspiracy; in improperly instructing the jury as to a reasonable doubt; in failing to caution the jury about convicting on the uncorroborated testimony of an accomplice. Certain remarks of the district attorney are also assigned as error.

It is the duty of the trial court to properly instruct the jury as to the nature and character of the crime on trial so that there may be no doubt in the minds of the jurors as to a proper application of the facts they may find: Com. v. Duffy, 49 Pa. Superior Ct. 344. Conspiracy, though applying to many different combinations of wrongdoing, rises no higher than any other crime in so far as a definition as to its nature and character is concerned. The charge defines the crime as a “combination between two or more persons to do an unlawful act.” This is a technical definition of conspiracy. Through the charge we find the following statements: “After the conspiracy is formed, it makes no difference which one of the conspirators performs the unlawful act, all who conspire are guilty of the conspiracy.” “The commonwealth alleges that Brown, the defendant, and Ginsburg .... conspired to remove the stock of shoes from the place of business occupied by Ginsburg at 4332 Germantown Avenue, in order to prevent his creditors from collecting debts that he owed them. It has been argued that all this evidence serves to corroborate the testimony of Ginsburg, and that the combination was made between Brown and him to defraud the creditors.” The court then reviews the facts as we have stated them in the opening of this opinion, and held that if the jury found them to be true they would constitute the crime of conspiracy. This in itself was substantially a complete definition of the crime, but if anything was lacking in the court’s charge (we do not so hold), the affirmance of the defendant’s sixth point covers any omission to properly define the crime. The sixth point and the answer thereto is as follows:

“The gist of the offense charged in this case is the unlawful agreement between the defendant and some other person, and unless the jury are satisfied beyond a reasonable doubt that the commonwealth has proved beyond a reasonable doubt that the defendant did enter into an unlawful agreement with some other person, their verdict should be ‘not guilty,’ even though they believe the goods were removed and even though some one was defrauded.

“This I affirm. You must be satisfied beyond a reasonable doubt that Brown entered into an agreement with Ginsburg, and that it was an unlawful agreement to remove Ginsburg’s property beyond the reach of his creditors.”

Points and answers as to the law governing a case on trial are part of the charge and must be so considered upon complaint of its inadequacy. When they are so considered and deemed complete the complaint of inadequacy of the instructions as to the law is groundless: Com. v. Payne, 242 Pa. 394.

When a reasonable doubt, within the meaning of the law and under the evidence, exists it is the property of the defendant, and must result in an acquittal: Com. v. Rider, 29 Pa. Superior Ct. 621. As to the objection relative to the instruction upon the matter of “reasonable doubt,” this is met by the affirmance of the defendant’s second and third points and the answers to these points further instructing the jury as to a reasonable doubt. These instructions, with other references throughout the general charge, are strictly within the line of decisions on that subject and sufficient: Com. v. Conroy, 207 Pa. 212.

"The testimony of an accomplice should be corroborated and if not, the jury should be advised that it is unsafe to convict on such uncorroborated testimony, yet it is well settled that there can be a conviction upon the testimony of an accomplice without corroboration:” Com. v. Klein, 42 Pa. Superior Ct. 66; Com. v. Simon, 44 Pa. Superior Ct. 538. The learned court speaks of Ginsburg, the co-conspirator, as follows: "Ginsburg, according to his own admissions, has not a savory record,” and in reply to a request of counsel to specifically charge on this testimony the court says: "Ginsburg confessed that he was a party to the conspiracy, and that he is as bad as he alleges Brown to be. The commonwealth charges that they are both equally guilty. Where a party to a crime testifies as to the commission of the crime, the jury should consider the fact and the motive that prompts his testimony, and scrutinize such testimony carefully, and it ought to be corroborated by other. witnesses or by circumstances. Ginsburg was the only witness as to the combination or conspiracy between Brown and himself. You may accept his testimony as true, if you are satisfied it is worthy of belief, or reject it if you regard it as unreliable.” While it does not say that it is "unsafe to convict,” the inference from the instructions is clear. The testimony of Ginsburg was corroborated by the men who assisted in packing the shoes; the agents of the railroad company who issued the bills of lading; the drayman in New York who received the bills of lading and delivered the goods to Kramer & Company’s building; the testimony of Kramer who owned the building in which the goods were placed; and the testimony of the drayman who took the goods away. This testimony connects Brown, the defendant, with each of the acts done in pursuance of the agreement. There was no actual corroboration of the agreement itself, but the acts in pursuance of that agreement were sufficient from which the jury could infer that the agreement was in existence. The charge of the court, with the evidence of corroboration at hand, was full and complete and the defendant can complain of no harm from it.

The assistant district attorney performed' the duties of the district attorney and was a quasi judicial officer representing the commonwealth. He should be careful to keep within his duties as such officer in his summing up to the jury or in the trial of a case. He should not press upon the jury any deductions not strictly legitimate, or make statements of harmful facts not testified to by himself or a witness: Com. v. Shoemaker, 240 Pa. 255, and cases therein cited; Com. v. Martin, 47 Pa. Superior Ct. 346. In the heat of an argument, where a cause is spiritedly contested, counsel’s memory of what is said to the jury often leans toward their interest in the case; and when a dispute arises as to what was actually said, and the trial court is asked to decide between the conflicting statements, the version adopted by that court will not be disturbed here unless clear mistake is shown. The trial court, having accepted the assistant district attorney’s view of the matter, we find no error in these remarks. The district attorney’s reference, in his closing to the jury, to the fact that no testimony had been offered to dispute the testimony of Ginsburg that they, Brown and Ginsburg, entered into a conspiracy, when read in connection with this statement of the assistant district attorney, and the light in which he used the remark, dispels any idea that it had reference to the defendant’s failure to take the witness stand in his own defense.

The seventh assignment of error complains that the court in its answer to the third point caused the burden of proof to shift. Throughout the entire charge the learned court made it clear that the burden was upon the commonwealth to establish beyond a reasonable doubt that the defendant entered into a conspiracy with Ginsburg to defraud the creditors of Ginsburg. It is evident that an attempt was made to cheat Ginsburg’s creditors.

The assignments of error are overruled, the judgment is affirmed and the record remitted to the court below that the sentence may be carried into effect.