Commonwealth v. Haimbach
| Decision Date | 26 February 1943 |
| Docket Number | 323,322,324-1942 |
| Citation | 151 Pa.Super. 581,30 A.2d 653 |
| Parties | Commonwealth v. Haimbach, Appellant |
| Court | Pennsylvania Superior Court |
Argued December 15, 1942.
Appeals from judgments of Q. S. Phila. Co., Feb. Sessions 1942, Nos. 484-486, in case of Commonwealth v. Frank Haimbach, Jr.
Indictment charging defendant with fraudulent conversion and with embezzlement. Before Smith, P. J.
Verdict of guilty, and judgment and sentence on one indictment. Defendant appealed from the judgment of sentence, and also from the "recording of the verdict" in each of the other cases.
Judgment on bill No. 485 affirmed, appeals in bills Nos. 484 and 486 dismissed.
Cecil P. Harvey, with him Walter Jones, for appellant.
Theodore L. Reimel, Assistant District Attorney, with him John H Maurer, District Attorney, for appellee.
Before Keller, P. J., Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ.
Defendant was charged with fraudulent conversion in one indictment and with embezzlement in two others. The charges were consolidated for trial before the same jury and defendant was convicted on all of them. He was sentenced only on bill No. 485 February Sessions 1942. Defendant has appealed from the judgment of sentence on that bill and also from the "recording of the verdict" in each of the other two cases, in which sentence was suspended. These latter appeals will be dismissed.
In general an appeal can be taken only after sentence. "After verdict and judgment thereon, then, and not till then, can the alleged error be reviewed here on writ of error": Com. v. Ruth, 104 Pa. 294; Petition of M. S. Quay, 189 Pa. 517, 542, 42 A. 199; Com. v. Penrod, 1 W.N.C. 65. In Marsh v. Commonwealth, 16 Serge. & Rawle 318, a writ of error was quashed when it appeared that the defendant though convicted, had not been sentenced. The Supreme Court said: "It is time enough to permit him to arrest the course of the criminal law, when he has shown that he has suffered actual injury." The Acts of June 24, 1895, P. L. 212, 17 PS 111, and May 19, 1897, P. L. 67, 12 PS 1133, make no provision for an appeal to this court in criminal cases except from a sentence or final judgment. Com. v. Gates, 98 Pa.Super. 591. Appeals from such orders have been quashed generally (Com. v. Mellon, 81 Pa.Super. 20) : Com. ex rel. Paige v. Smith, 130 Pa.Super. 536, 198 A. 812. The rule is not inflexible and will yield in exceptional cases to safeguard basic human rights. Com. v. Ragone, 317 Pa. 113, 176 A. 454; Com. v. Trunk, 311 Pa. 555, 167 A. 333; Com. v. Haines, 130 Pa.Super. 196, 196 A. 621. But there is nothing in the present cases bringing them within an exception to the rule.
Bill 485 charged the defendant with the embezzlement of $ 1,184.38, the property of Philadelphia Dressed Beef Company on April 26, 1941, while in its employ as a bookkeeper. On the trial defendant offered no evidence but submitted a point for a directed verdict of not guilty which was refused. After verdict defendant moved, both for a new trial and for the "discharge of the defendant," on the ground "that there is no evidence here which would sustain a conviction."
The Act of April 22, 1905, P. L. 286, did not extend the entry of judgment non obstante veredicto to criminal prosecutions. A defendant by presenting a point for binding instructions, questioning the sufficiency of the evidence to support a conviction, may put himself in position for a review of that question by excepting to the refusal to so charge. Com. v. Jones, 100 Pa.Super. 121. But the court cannot reserve that point and enter judgment for the defendant after verdict of guilty either on the point for binding instructions, or non obstante veredicto. The remedy in the court below if it concludes that error was committed in refusing to direct a verdict in favor of a defendant, is to grant a new trial. Com. v. Heller, 147 Pa.Super. 68, 24 A.2d 460.
Defendant in this case is not entitled to a review of the sufficiency of the evidence, as a matter of right, for the reason that he withdrew his motion for a new trial in the court below. The legal effect of the withdrawal of that motion, in our opinion, was to restrict the scope of the motion to discharge the defendant to that of a motion to arrest the judgment. A motion in arrest of judgment, does not raise the question of the sufficiency of the evidence. The rule is that the judgment can be arrested only for cause appearing on the face of the record consisting of the indictment, the plea and issue and the verdict. Com. v. Long, 131 Pa.Super. 28, 198 A. 474; Com. v. Routley, 115 Pa.Super. 125, 174 A. 657. "No judgment should be arrested because of a perverse verdict, one contrary to the instruction of the court, or a verdict not supported by competent evidence, or upon the ground that the court refused to give binding instructions to the jury": Com. v. Bateman, 92 Pa.Super. 53. No ground for arrest of judgment appears in this case and the request for a new trial having been withdrawn, the judgment must stand.
However on the merits, we find evidence sufficient to support a conviction. Defendant was office manager for the company with the duty to keep the books and to take care of "the receivables and handle all the cash that came through the office." Starting with a balance sheet prepared by the defendant showing $ 3,587.18 cash on hand on December...
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