Commonwealth v. Benz

• Decision Date: 15 April 1935
• Docket Number: 81,91
• Citation: 318 Pa. 465,178 A. 390
• Parties: Commonwealth v. Benz, Appellant; Commonwealth v. Routley, Appellant
• Court: Pennsylvania Supreme Court

178 A. 390

318 Pa. 465

Commonwealth v. Benz, Appellant;

Commonwealth v. Routley, Appellant

Nos. 81, 91

Supreme Court of Pennsylvania

April 15, 1935

Argued March 25, 1935

Appeals, Nos. 81 and 91, March T., 1935, by defendants, from orders of Superior Court, April T., 1935, Nos. 8 and 11 affirming order of Q.S. Allegheny Co., June Session, 1932 No. 1286, in cases of Commonwealth v. Cedric C. Benz, and Commonwealth v. James E. Routley. Judgments reversed.

Indictment for conspiracy to defraud county.

The opinion of the Supreme Court states the facts.

Verdicts of guilty, and judgments and sentences thereon. Defendants appealed to Superior Court, which affirmed order of court below. Appeal allowed to Supreme Court.

Error assigned, among others, was judgment.

The judgments of the court below are reversed, and both defendants are discharged.

Harry A. Estep, with him James T. Philpott, for appellant, James E. Routley.

John B. Nicklas, Jr., of McCrady, McClure, Nicklas & Hirschfield, for appellant, Cedric C. Benz.

E. T. Adair, Assistant District Attorney, with him Andrew T. Park, District Attorney, for appellees.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE KEPHART:

Defendants were charged with conspiracy to defraud the County of Allegheny out of its funds or property by the use of gasoline delivered to them for their personal use and paid for by the county. At common law, a criminal conspiracy is an agreement between two or more persons with criminal intent to do an unlawful act, or to do a lawful act by unlawful means: Com. v. Richardson, 229 Pa. 609, 611. The indictment may be sustained under section 128 of the Criminal Code, as well as at common law. Conspiracy depends on the agreement and the criminal intent of the parties to the agreement to commit an unlawful act, not on the acts that follow; the acts when done are but evidence against the accused when the conspiracy is established (Newall v. Jenkins, 26 Pa. 159; 12 C.J. 543). The mere fact that the agreement has for its object the doing of an unlawful act does not amount to conspiracy unless the parties were actuated by criminal intent. The agreement itself must be corrupt. The agreement of the parties to get gasoline at the service station and charge it to the county would not amount to conspiracy unless it be shown that it was done with criminal intent to defraud the county. The agreement of the parties to use gasoline purchased by the county on automobile trips for their own personal benefit would not be conspiracy unless the parties were actuated by an intent to defraud the county. "To make an agreement between two or more persons to do an act innocent in itself a criminal conspiracy, it is not enough that it appears that the act which was the object of the agreement was prohibited. The confederation must be corrupt. The agreement must have been entered into with an evil purpose, as distinguished from the purpose simply to do the act prohibited, in ignorance of the prohibition. The criminal quality resides in the intention of the parties to the agreement, construed in connection with the purpose contemplated. The mere fact that the conspiracy has for its object the doing of an act which may be unlawful, followed by the doing of such act, does not constitute the crime of conspiracy, unless the jury find that the parties were actuated by a criminal intent": Com. v. Gormley, 77 Pa.Super. 298.

The charge of conspiracy is easily made. Mere suspicion and possibility of guilty connection is not to be received as proof in such cases: Benford v. Sanner, 40 Pa. 9. A foundation must first be laid by proof sufficient to establish the unlawful agreement between the parties. The connection being thus shown, the subsequent acts in pursuance of that agreement are then original evidence against them. But, the subsequent acts are immaterial and are not competent unless and until the agreement be established: 1 Taylor on Evidence, section 590; 1 Greenleaf on Evidence, section 111. The gravamen of the conspiracy alleged lies in the agreement with criminal intent to defraud the county; failure to prove the agreement with such intent defeats the charge: Ballantine v. Cummings, 220 Pa. 621.

The following facts were developed in the Commonwealth's case: Routley, assistant chief clerk for the county commissioners, sometimes acting chief clerk, in 1928 ordered Benz, his codefendant, to issue orders to a gasoline station to take care of the delivery of gasoline to individuals who were then using their own cars for county purposes. Routley's car was among those so used. Benz, who was the chief clerk of the purchasing department (a separate department from the one in which Routley was employed), took the matter up with the chairman of the board of county commissioners, and received a confirmation of this order from the chairman; at the same time he was directed by the chairman to secure gas for his and Routley's car from the Peoples Service Station, and charge it to the county. No minute in the commissioners' minute book was made of this order. It was a verbal direction. It appeared that the expenses of other employees for gasoline were also paid for by the county, by orders of which no minute had been made.

In the spring of 1932, a change of administration in the commissioners' office occurred, and the new commissioners ordered a general audit of all the business affairs of the county for a number of years. They found that from 1928 to 1931 inclusive, there were nine county service stations owned by the county, and that, in addition, the county secured gas from independent retail dealers. The Peoples Service Station was such an independent dealer, and had an annual contract with the county for gasoline. In the fall of the year, the various departments of the county would requisition gas for the following year. These requisitions were filed with the purchasing department which issued orders to the various gas stations to deliver gas. Certain of these orders were to take care of the delivery of gas to individual automobiles. The drivers receiving the gasoline signed delivery slips with the license number of the car driven. This was the sole evidence of delivery to any car. Payment was made by noting order numbers on invoices which were sent to the bureau of accounts, another department in the commissioners' office. Vouchers were then made up in payment of these invoices after audit by the controller.

Under these orders, gasoline had been secured from the Peoples Service Station by cars bearing the license numbers of Benz and Routley. Routley and Benz had accounts at this station prior to the time the orders were given to have their gas charged to the county, and when gas was delivered to these cars it was charged to them individually. The service station made no change in their accounts though it knew the gasoline was to be paid for by the county. The particular funds used to pay for gasoline secured by these cars were those of the North and South Parks; county orders in excess of their requisitions were issued and sent to the Peoples Service Station. Part payment for the gasoline delivered to the Routley and Benz cars was made by applying to their accounts certain order numbers allocated to these parks. Other payments were made in the following manner: In the late fall gasoline was purchased and paid for by the county for the several county departments; delivery was to be made during the early part of the year following. When deliveries were made under this arrangement, it was at current prices; these were usually less than the price paid in the fall of the year, and the accounts would show a credit balance in favor of the county. In some cases these balances were credited to the defendants' accounts.

The auditors found from the delivery slips that the Routley car had been charged in four years with $1,426.97 worth of gas and oil, and Benz's car with $669.29. The service station books also showed gasoline and oil had been delivered to other persons, charged to these accounts and paid for by the county in a sum approximating $954.80.

Harris, the service station manager, testified that he received orders from Benz to charge gas furnished the Routley and Benz cars to the county. Instructions with regard to these transactions were received from Benz; Routley gave no instructions at all, and did not appear in the matter. Although Harris occasionally saw Benz getting gas at the station, he never saw Routley getting gas at any time, and the gas put in his car was always received by others who signed his name to the delivery slip. Harris stated that all bookkeeping arrangements were made by and through the bookkeeping department; Routley and Benz had nothing to do with that department. Benz did direct him how to make his charge against the county, that is, by indicating on the invoices the order number affected, the invoice being sent to the bureau of accounts. The method of payment was that when the accounts reached $100 or at the end of the month, invoices were made out and a park order number given on the invoices, these were sent through for payment; when invoices were lost Harris personally took them up with the accounting department, giving duplicates, if necessary. An employee of the controller's office verified the auditors statements as to method of payment.

Another witness for the Commonwealth was Barnett, a county employee who was at the head of some county drivers, and who had at different times assigned three or four drivers to use Routley's car on county business. Barnett stated that he had frequently driven Routley's car himself and had signed some of the delivery slips for gas charged to Routley's...