Commonwealth v. Goldstein

Citation6 Pa. D. & C. 418
Decision Date28 April 1924
Docket Number40
PartiesCommonwealth v. Goldstein
CourtCommonwealth Court of Pennsylvania

Warren S. Burchinal , First Assistant District Attorney, for Commonwealth.

Carl E. Gibson (of Vance & Gibson ) for defendant.

Argued before Brownson, P. J., and Cummins, J.

OPINION

Conviction of larceny. Motion for new trial.

CUMMINS J.

Bennie Goldstein, a junk dealer, was indicted and tried on the charge of larceny. The property stolen consisted of a drilling cable and other rope belonging to an oil well driller by the name of Steele. A well having been completed on the farm of one Conklin, the drilling equipment was left at this well, Conklin agreeing with Steele to look after same. It was not claimed that Goldstein himself, by his own hands, took and carried away said rope, but that he had done so by two employees, Swan and Carington, sent by him to the Conklin farm for that purpose. The unlawful taking was not effected by stealth, but by trick, by having his said employees represent to Conklin that " they had an order from Steele to get the rope." Swan and Carington, who were called as witnesses for the Commonwealth, testified that they had made such representations in good faith and at the direction of Goldstein, and were unaware that defendant had not in fact arranged with Steele for securing said rope. Among the statements made by Swan and Carington to Conklin, to induce him to permit them to take the rope, was one to the effect that " it didn't make any difference to him (Swan) whether he took it in himself or whether I (Conklin) took it down, he was getting paid by the day; and he also said if I ever had any junk, to bring it to the Monongahela City Junk Yard."

It is not very material, for the purposes of this case, however, whether Swan and Carington innocently or with guilty knowledge secured possession of the rope in question. If Goldstein's employees, being ignorant of the character of the act perpetrated, innocently effected this theft by trick, Goldstein would himself be the principal or actual perpetrator of the crime, and his employees but the innocent agents through whom he committed the act: State v. Shurtliff, 18 Me. 368; Bishop v. State, 30 Ala. 34; Blackburn v. State, 23 Ohio St. 146; Regina v. Bannen, 2 Moo. C. C. 309; May's Criminal Law, 51; Hale P. C., 514; Vaux Case, 4 Coke, 44; while, if Swan and Carington were aware that the taking was criminal, then they would be the principals and Goldstein an accessory before the fact. But, whether principal or accessory, defendant was properly indicted and tried as a principal; for an accessory before the fact, under section 44 of the Criminal Procedure Act of March 31, 1860, P. L. 427, 440, may be, and usually now is, indicted and tried as a principal: Brandt v. Com., 94 Pa. 290; Com. v. Bradley, 16 Pa.Super. 561; Campbell v. Com., 84 Pa. 187; Sadler on Criminal Procedure in Penna., § 44, page 125. In either event, Swan and Carington were the agents of defendant, either his innocent agents or, as his confederates, each the agent of the other. The jury returned a verdict of guilty. The case is now before the court on motion for a new trial.

The third reason assigned in support of defendant's motion complains of the court's ruling in permitting Conklin to testify to statements made by Swan and Carington, by means of which they secured possession of the property stolen, the court holding that these statements were admissible as part of the res gestae ; that they constituted a part of the actual larceny, the unlawful taking by trick. In this the court committed no error. The Commonwealth had previously shown by the testimony of Swan and Carington, who had been called as witnesses, that, in the taking, they were acting as the agents of and for defendant, to establish which fact they themselves were competent witnesses generally: Lawall v. Groman, 180 Pa. 532; Curran v. Insurance Co., 251 Pa. 420; Hileman v. Falck, 263 Pa. 351; Jordan v. Stewart, 23 Pa. 244; Fee v. Express Co., 38 Pa.Super. 83. And the fact that Swan and Carington were acting as the agents of defendant in the taking of this rope, having been first shown by competent evidence, it necessarily follows that any statement made by them incidental to and constituting a part of such actual taking would be admissible as part of the res gestae : Oil City Fuel Co. v. Boundy, 122 Pa. 449; Com. v. Biddle, 200 Pa. 640; Singer Manuf. Co. v. Christian, 211 Pa. 534, 540; Curran v. Insurance Co., 251 Pa. 420, 435; B. & O. Relief Ass'n v. Post, 122 Pa. 579; Hannay v. Stewart, 6 Watts, 487; Mellick v. Railroad Co., 17 Pa.Super. 12; Shelhamer v. Thomas, 7 S. & R. 106; Patton v. Minesinger, 25 Pa. 393; Fee v. Adams Express Co., 38 Pa.Super. 83; Henry on Penna. Trial Evidence, § 76, page 80.

The same principle is involved whenever several persons conspire together to commit any crime -- each becoming the agent of the other with respect to the criminal act to be committed, and everything said or done by any of them in the furtherance of the common purpose is admissible against all: Com. v. Eberle, 3 S. & R. 9; Lowe v. Dalrymple, 117 Pa. 564; Hartman v. Diller, 62 Pa. 37; Scott v. Baker, 37 Pa. 330. And, moreover, whenever the fact of conspiracy (and resulting agency) is once established, the declarations of any one of the confederates, to be admissible, need not have been made in the presence of the others (McCabe v. Burns, 66 Pa. 356; Com. v. Biddle, 200 Pa. 640), but, as part of the res gestae , is admissible, notwithstanding their absence: Heine v. Com., 91 Pa. 145; Com. v. Stambaugh, 22 Pa.Super. 386; Com. v. Zuern, 16 Pa.Super. 588.

The fourth assignment complains of the court's treating the testimony of Conklin, as to these statements made by Swan and Carington in securing the possession of the rope, as corroboration of the testimony of Swan and Carington to the effect that they were acting as the innocent agents of defendant. Let this distinction be carefully drawn, that it was not the statements themselves made by Swan and Carington, at the time of securing possession of the rope in question, which were treated by the court as corroboration of their agency, but the fact itself that they made such statements. The fact that they made statements to Conklin, from whose custody they secured the rope, disclosing the fact that they were from the Monongahela City Junk Yard, so that, if thieves, they could be easily apprehended. This was a fact or circumstance connected with the taking itself; a part of the res gestae , warranting the inference that the taking, in so far as they were concerned, was an innocent taking, and this in corroboration of the testimony of Swan and Carington given upon trial, that they were but the innocent agents of defendant in that taking. The contents of the statements themselves implicated defendant in no way; but the fact that Swan and Carington made such statements was evidence of the absence of any criminal intent on their part. It was a verbal act. " What a man says when he does a thing shows the nature of his act and is a part of the act:" Rankin v. Tenbrook, 6 Watts, 388, 390. The inference, therefore, which the court suggested might be drawn by the jury was clearly warranted: B. & O. Relief Ass'n v. Post, 122 Pa. 579; Singer Manuf. Co. v. Christian, 211 Pa. 534, 540; Stewart v. Machine Co., 200 Pa. 611; Hoskins v. People, 42 Pa.Super. 611, 617; Fee v. Adams Express Co., 38 Pa.Super. 83; Curran v. Insurance Co., 251 Pa. 420, 435; Com. v. Storey, 49 Pa.Super. 282; 1 Greenleaf on Evidence (16th ed.), § § 100 and 101, page 185; Henry on Penna. Trial Evidence, § 77, page 82; Hertzler v. Geigley, 196 Pa. 419.

The first, second, fifth, sixth and seventh reasons assigned in support of defendant's motion involve the question as to what weight should have been given to the testimony of Swan and Carington and the court's instructions with reference thereto. They may, therefore, be considered together. These several reasons in the main are predicated upon erroneous assumptions.

It is assumed that Swan and Carington were admitted accomplices which is by no means borne out by the evidence, as by the...

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