Commonwealth v. Dunie

• Decision Date: 20 January 1953
• Citation: 94 A.2d 166,172 Pa.Super. 444
• Parties: COMMONWEALTH v. DUNIE et al. COMMONWEALTH v. DUNIE.
• Court: Pennsylvania Superior Court

94 A.2d 166

172 Pa.Super. 444

COMMONWEALTH v. DUNIE et al.

COMMONWEALTH v. DUNIE.

Superior Court of Pennsylvania.

January 20, 1953

Defendant was convicted in the Court of Quarter Sessions of Lancaster County at Indictments Nos. 41 and 42 December Term, 1950 (complaints Nos. 229 and 230 September sessions, 1950) respectively, Joseph B. Wissler, J., of conspiracy and receiving, and he appealed. The Superior Court Nos. 221, 222 October Term, 1952, Reno, J., held that the statute of limitations does not run on charge of conspiracy to cheat and defraud until the conspiracy has ceased.

Judgments and sentences affirmed.

Chas. W. Eaby, Jr., and Chas. W. Eaby Lancaster, for appellants.

Paul A. Mueller, Lancaster, William C. Storb, lst Asst. Dist Atty., Lancaster, for appellee.

Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ.

RENO, Judge.

This appeal lies in the groove of Com. v. Kimmel, 172 Pa.Super. 76, 92 A.2d 247, and Com. v. Miller, 172 Pa.Super. 82, 92 A.2d 249, in which allocaturs were refused. Appellant, a junk dealer, purchased scrap materials from the Armstrong Cork Company and through a corrupt agreement with Frank E. Hauck, Armstrong's yard master, secured large quantities of materials without paying for them. With Hauck he was indicted for conspiracy; Hauck pleaded guilty; and appellant was found guilty. On another indictment, he was charged with fraudulent conversion, larceny, and receiving was convicted of fraudulent conversion and receiving; and acquitted of larceny. Sentence for fraudulent conversion was suspended; and for the conspiracy and receiving convictions he was given two consecutive jail sentences.

The facts, established by the jury's verdict, places appellant squarely within the Kimmel and Miller pattern. Pursuant to an agreement made in 1945, Hauck, in consideration of periodical money payments, systematically delivered more materials to appellant than he paid for. In his opinion denying a new trial Judge Wissler explained the modus operandi: ‘ The ‘ light-weighting’ of the Dunie trucks was accomplished by Hauck by increasing the tare or empty weight of the trucks, for example, from 8000 to 8300 pounds. Hauck would also give defendant the advantage by reducing the recorded weight of the materials being sold to Dunie by taking a couple of hundred pounds off the gross weight * * * and, in addition, seven to ten of the Dunie trucks per month were allowed to leave the salvage yard of the Armstrong Cork Company without any weigh slips whatsoever. 'This practice continued until September 1950, and the indictments were found in December 1950.

Because the conspiracy was formed in 1945 appellant argues that the prosecution begun in 1950 was barred by the Statute of Limitations. The conspiracy indictment was drawn under the Penal Code of June 24, 1939, P.L. 872, 18 P.S. § 4302, which condemns a conspiracy ‘ to cheat and defraud any person of his moneys, goods, chattels, or other property, * * *’ and charged the commission of the offense within the two-year statutory period. The proof is that Hauck and appellant, from 1945 to September 1950, continuously engaged in criminal acts pursuant to their agreement. It was a continuing conspiracy which was...