Commonwealth v. Donnelly

• Decision Date: 14 July 1909
• Docket Number: 249-1908
• Citation: 40 Pa.Super. 116
• Parties: Commonwealth v. Donnelly, Appellant
• Court: Pennsylvania Superior Court

40 Pa.Super. 116

Commonwealth v. Donnelly, Appellant

No. 249-1908

Superior Court of Pennsylvania

July 14, 1909

Argued April 19, 1909 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendants, from judgment of Q. S. Phila. Co.-1908, No. 288, on verdict of guilty in case of Commonwealth v. William A. Donnelly et al.

Indictment for conspiracy. Before Wiltbank, J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty, upon which judgment of sentence was passed.

On a rule for a new trial Wiltbank, J., filed the following opinion:

This was an indictment for conspiracy. Ten defendants appeared for trial. Of these the bill was submitted as to four, to wit: William S. Darnell, Mahlon Van Booskirk, Howard W. Bush, Edmund S. Fritz; the jury found a verdict of not guilty as to C. A. Conrad and H. U. Hollenbach, and after presentation of the proofs and charge of the court the jury found guilty Paul Morris, William J. Darnell, M. W. Watkinson and H. H. Missimer. Rules for a new trial were granted on the motion of Morris, Darnell, Watkinson and Missimer.

Three points were made at the argument of the rule for a new trial which merit consideration.

The first point which I shall take up is also involved in a rule taken by certain of the defendants to show cause why the verdict should not be set aside and the plea of guilty entered of record should not be struck off. This point is founded upon the contention that, although a plea of guilty has been entered by the court on the several bills of indictment and on the part of all of the defendants now before the court, yet in point of fact the plea was not made by all of them before the trial. This point, however, is not well taken. When the case was called, as there was a large number of counsel engaged, the several defendants were summoned by the crier, and notation made of their professional representatives. Thus with respect to each of them an appearance was duly entered. The district attorney then announced that, unless it was desired that each defendant should be arraigned, it would be considered that they pleaded not guilty. This suggestion was acceded to, and the plea of not guilty was accordingly entered by the court through the clerk and the trial proceeded. The trial judge reports this to be an account of what then happened. After thus proceeding to trial without objection, it is not competent for the defendants to avail themselves of a silence which they allege they maintained, in order that upon the failure of their defense to acquit them they might complain of a situation which they had produced.

The second point rested upon the ruling of the trial judge at the opening of the address of the district attorney.

The minutes of the trial show that at a stage of the summing up of the district attorney that officer said: " Only two of the defendants had taken the witness stand; that those who did merely repeated, in effect, their plea of not guilty, and that this was all of the defendants' case."

Whereupon C. A. Conrad by C.J. Hepburn, Esq., his attorney, moved the court that a juror be withdrawn.

This motion was made in behalf of the defendant Conrad, and was overruled by the court. An exception was asked for and refused. The defendant Conrad was acquitted.

It was not competent to withdraw a juror at the trial. Many defendants were involved, and each had his interest in desiring a verdict of acquittal, by which he should be exonerated from the grave charge of conspiracy to defraud. As it resulted the defendant Conrad, in whose behalf the objection was made, was as has been stated himself acquitted, together with one other defendant; and accordingly, it is not to be considered that the objector was prejudiced before the jury by the expression of the district attorney.

No other plaintiff having excepted to the words referred to, it is not their privilege to secure a new trial on this ground: Com. v. Clark, 10 Pa. Dist. 641; Com. v. Dorman, 22 Pa.Super. 20.

An examination of the statement of the district attorney makes it clear that there was no reference to defendants other than the two who took the stand. As to these the language was that they had merely repeated, in effect, their plea of not guilty, and this was all of the defendants' case.

The third point presented on the argument for a new trial had relation to the instruction of the court, as follows:

You will find that new men from time to time have come into a relation with the United States Graphite Company, and that some of these are defendants here. Within the scope of this case it may be said that a conspiracy may, as it were, be made up of continuing acts. The original combination may advance to a combination for further action, thus giving life to a combination adapted to change in circumstances, or adapted to a new stage of the conspiracy reached in the development of the plan. In such a case a new impluse is given to the men engaged, and the continued action or new action necessitated by lapse of time in working out the original scheme, must be regarded as a consequence involved in the plan at the beginning, and therefore as anticipated by the actors, upon the principle that when they conspired they not only contemplated present action but prepared for new decisions for action in the future. Should a conspiracy of this continuing character be found by you as a fact in the case, you might, if the proofs justified it under this charge, find any defendant a party to it, even although he entered into a relation with the original offenders at some later stage of the case, when renewed action was unlawfully agreed upon by all of them. In other words, a man may adopt and enter into a continuing conspiracy after its life has begun, and thus became a party to it and its consequences and liable to prosecution. Some of these defendants, it may be, appear to stand close to the transactions which were unlawful and which they deliberately inaugurated or advanced. This may not be your view of the situation, and you must follow your view. You will studiously examine what has been presented to you, with care in sifting the evidence, and with the intention to convict if the proofs require it, no matter what might follow, but with an equally urgent intention to acquit if that course is required of you under your oaths.

We do not discover error in this instruction. It is consistent with, and according to, the authorities as we find them.

It is to be noted at the outset, however, that the defendants found guilty were shown by the proofs to have been of the party creating the conspiracy in its origin. Paul Morris, William J. Donnelly, M. W. Watkinson and H. H. Missimer were active from the commencement of the scheme and in the formation of the combination at that time, which the jury has found to have been criminal.

In Com. v. Wishart and others, in this court, reported in 8 Legal Gazette, 137, there was an indictment for conspiracy, and among other defenses the statute of limitations was set up, In consideration of this point the trial judge -- the present chief justice of Pennsylvania -- instructed the jury in a manner regarded as a guide to us in our disposition of the case at bar. He said: " Now, as to the law relating to the statute of limitations. counsel claim that the substantive offense charged in this indictment is the agreement to do an unlawful act, and at the moment such agreement was made, the running of the act began, and that if the prosecution was not instituted for more than two years after such an agreement was formed, the defendants could not be convicted, no matter how guilty they might be. But I instruct you that the agreement is not the end of the offense, and that the statute does not begin to run until the end of the conspiracy. If an act in the conspiracy is shown, the presumption is that all subsequent acts based on it and in pursuance of the same plan, were done with the consent and participation of the original conspirators. No doubt a man may repent and retire from a conspiracy, but when it goes on from step to step, and there is no break and no new start, a connection shown at any point may be presumed to continue through the subsequent steps of the conspiracy."

The rule for a new trial is discharged.

Errors assigned were various rulings and instructions set forth in the opinion of the Superior Court.

Horace L. Henderson, with him William T. Aldrich, Jr., and Michael J. Ryan, for appellant. -- Evidence of the value of land must relate and be confined to the time of the transaction in controversy: Zerbe v. Miller, 16 Pa. 488.

The general and established rule is that recitals of consideration in a deed are no evidence whatever as against strangers, and even as to parties are of insignificant value, always being open to explanation and attack: Dean v. Connelly, 6 Pa. 239; Garwood v. Dennis, 4 Binney, 314; Lloyd v. Lynch, 28 Pa. 419; Depew v. Clark, 1 Phila. 432; Goodspeed v. Fuller, 46 Me. 141; Rose v. Taunton, 119 Mass. 99; Lake Roland El. Ry. Co. v. Frick, 86 Md. 259 (37 A. 650).

There was nothing in the evidence submitted by the commonwealth that met the condition undertaken by the district attorney to connect the evidence of the purchase by McLearn from McIntyre with the conspiracy charged in the indictment, and under the circumstances, it is submitted that it was the duty of the court, before submitting the case to the jury, and upon its own motion, to have stricken from the record all the evidence relating to that subject, and the failure to do so was reversible error: People v. Stephenson, 91 Hun, 613; Albert v. Miller, 7 W.N.C. 477; Jenkins v. State, 35 Fla. 737 (18 So. 182); Berford v. Sanner, 40 Pa. 9.

The...