Commonwealth v. Huston

• Decision Date: 03 March 1911
• Docket Number: 16-1911
• Citation: 46 Pa.Super. 172
• Parties: Commonwealth v. Huston, Appellant
• Court: Pennsylvania Superior Court

46 Pa.Super. 172

Commonwealth v. Huston, Appellant

No. 16-1911

Superior Court of Pennsylvania

March 3, 1911

Argued December 12, 1910 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of Q. S. Dauphin Co., Sept. Sessions, 1907, No. 240, on verdict of guilty in case of Commonwealth v. Joseph M. Huston et al.

Indictment for conspiracy.

The facts are stated in the opinion of the Superior Court. See also Com. v. Sanderson, 40 Pa.Super. 416, and Com. v. Snyder, 40 Pa.Super. 485.

At the trial the commonwealth made the following offer:

The commonwealth offers to identify and put in evidence as exhibits in this case four desks furnished to the commonwealth under the bill set forth in the indictment and now in evidence as commonwealth's exhibit " H-16," charged in said bill as follows:

" 1, Page 60, room 169, 1 desk 20 feet, at $ 18.40 per foot, $ 368.00; 2, Page 13, room 116, 1 desk 15 feet, at $ 18.40 per foot, $ 276.00; 3, Page 219, room 310, 1 desk 16 1/2 feet, at $ 18.40 per foot, $ 303.60; 4, Page 91, room 511, 1 desk 7 1/2 feet, at $ 18.40 per foot, $ 138.00; and to prove by G. L. Holton, Superintendent of the factory of the Derby Desk Company, by which company said desks were made, that Desk No. 4, above mentioned is three inches longer than Desk No. 3, and that Desks Nos. 1 and 2, above mentioned, are each 5 1/2 feet long -- it appearing from the bill in evidence that Desk No. 4, is charged as containing 7 1/2 feet, whereas Desk No. 3, is charged as containing 16 1/2 feet; and that Desks Nos. 1 and 2 are charged as containing 20 feet and 15 feet respectively."

This offer is made for the purpose of illustrating the testimony of the commonwealth and demonstrating that said bill is false as to measurements. In connection with this offer the commonwealth purposes to prove by the said G. L. Holton that Desk No. 2, above mentioned, and thirty-three other desks in said bill, are not specially designed desks made in accordance with designs and specifications prepared by the defendant, Huston, and approved by the superintendent of the public grounds and buildings, and the board of public grounds and buildings, but are stock articles supplied from the catalogue of the said Derby Desk Company, without any reference to Huston's designs or specifications. For the purpose of showing that said bill and Huston's approval thereof are false and fraudulent, and for the purpose of showing Huston's intent to defraud.

Mr. Graham: The defendant objects to the offer of the commonwealth just made.

The Court: The objection is overruled, the offer is received. Exception for defendant.

Mr. Cunningham: If the court please, we offer in evidence that portion of the page of the catalogue identified by the witness showing the design of the class B. roll-top desk in question under this bill.

Mr. Graham: That is admitted subject to our objection and exception of course.

The Court: Received subject to the former objection.

Mr. Cunningham: The commonwealth now proposes to prove by the witness on the stand, G. L. Holton, that with reference to the class A. and class C desks covered by the bill in question, none of them were manufactured from designs or specifications prepared by the defendant Huston, the class A desks having been manufactured from a design prepared jointly by the witness Holton and John H. Sanderson by taking catalogue desks and making certain combinations and changes on the same; the class C desks having also been manufactured from designs prepared jointly by the witness Holton and Sanderson; and that with reference to the manufacture of class A and class C desks, the witness had no knowledge of any plans or specifications prepared by the defendant Huston, and none of said desks were in fact manufactured in accordance with or from any plans or specifications prepared by the defendant Huston.

Mr. Graham: I object to it first, because it does not say when they made this design.

Second, it says that it was made from a design prepared by the witness and John H. Sanderson.

Third, it does not state that Sanderson had not access to the Huston designs.

Generally, it is irrelevant and immaterial.

Mr. Cunningham: I amend the offer, if the court please, by saying that the offer is to prove that these designs were prepared by Sanderson and Holton when the order was given by Sanderson to Holton in 1905.

Mr. Graham: You see that is after the specifications and designs of Huston were made and in existence and had been approved by the board.

The Court: The objection is overruled, the offer is received and exception noted for the defendant.

Henry C. Mercer, recalled, testified as follows:

Mr. Cunningham: The commonwealth proposes to prove by Henry C. Mercer, the witness on the stand, that he, Mercer, being the only manufacturer of Moravian tiling in America, entered into an arrangement with the defendant, Joseph M. Huston, to supply the Moravian tiling for the main floor of the capitol building at $ 1.03 per square foot. That while said arrangement was in force and after the schedule of 1904-1905 had been approved, but before the last day for bidding thereon had arrived, Huston sent a copy of said schedule to the witness, accompanied by the following letter:

" My dear Mr. Mercer:

" I sent to you under separate cover a schedule for the next year's supplies for the State, and on page turned down and marked you will see the reason for my note of the other day. As something must be bid off the maximum I do not want you to quote any lower. This is intended to pay for the extra floor I want, i. e., the Governor's Executive Reception Room where Miss Oakley paints and other hearths, etc. I am glad to hear that you are getting on so well and when the time arrives will be delighted to go up to see you. The Governor was much pleased when I told him of the tile work and the subjects incorporated.

" With kindest regards, I am,

" Yours truly,

" J. M. Huston."

That Mr. Mercer never knew John H. Sanderson in the transaction and never gave him any quotation on Moravian tiles, and never communicated with Sanderson or received any communication from him.

The offer of this testimony is made in connection with the testimony already in, showing that Sanderson bid twenty-five per cent off the maximum price of $ 3.00 per foot on Item No. 41 in the schedule, being the item for Moravian tiles; for the purpose of showing collusion between Huston and Sanderson, and that Huston attempted to make an arrangement with Mercer that would prevent bona fide competitive bidding on this item of the schedule, and for the purpose of showing that Huston was a party to the attempted conspiracy between Sanderson and others to defraud the commonwealth.

Mr. Graham: This offer is objected to as irrelevant, immaterial and not pertinent to the issue. It is also objected to because the letter quotes " a note or letter of the other day," and we object to this letter being put in evidence without the production of the letter that is quoted, which is said to be explanatory.

Mr. Cunningham: To which objection counsel for the commonwealth makes the further offer to prove that diligent search has been made for the note referred to in the letter now offered in evidence, after which search the same has not been found; and that the witness, Mr. Mercer, now has no recollection of the note referred to or of its contents.

Mr. Graham: Counsel for defendant reply that the added statement does not overcome the force of the objection that has been made, but on the contrary shows how a fragment of the correspondence on the subject is offered. The fragment ought not to be admitted unless the entire paper is produced.

The Court: When we adjourned this morning there was an offer pending with objections to it. I think we will have to overrule the objections to the offer and admit it, giving an exception to the defendant.

The court charged in part as follows:

[You will take the certificate and read it. Does it mean that he was certifying that the amount of this particular bill and the amounts in the other bills to which the certificates are attached -- does he mean that John H. Sanderson, the contractor, was entitled to those amounts? You will read the certificates and determine. Are they open to interpretation? Is there any ambiguity about them? Can they be misunderstood? That is for you to determine.]

[The Court: Gentlemen of the jury: We understand you desire further instructions in the case. Is that true? Upon what question?

(Note handed to Court by foreman.)

The Court: The first question you ask, gentlemen of the jury, is: Has this contract signed by Huston placed him, said Huston, under all the responsibility for whatever was furnished in the capitol?

If you mean by that, was he responsible for what he certified in his certificate, we say that he was responsible for what he meant by that certificate. In the general charge we undertook to say to you it was for you to determine from all the evidence in the case what he honestly meant by that certificate whether he meant to certify that John H. Sanderson was entitled to the particular amount of the bill inserted in the certificate which would include the measurement and the price, because the amount is made up of measurements and prices, whether he intended to certify that, or whether he merely intended to certify that the articles furnished were in accordance with his plans and specifications; and we said you were to determine that from all the evidence in the case. We called your attention to the...