Commonwealth v. Leib

• Citation: 76 Pa.Super. 413
• Decision Date: 18 April 1921
• Docket Number: 296-1920,298-1920,297-1920,147-1920
• Parties: Commonwealth v. Leib, Appellant
• Court: Pennsylvania Superior Court

76 Pa.Super. 413

Commonwealth v. Leib, Appellant

Nos. 147-1920, 296-1920, 297-1920, 298-1920

Superior Court of Pennsylvania

April 18, 1921

Argued December 10, 1920 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeals by defendant from judgment and sentence of Q. S. Phila. Co., May Sessions, 1919, Nos. 663, 664, 665 and 666, on verdict of guilty in the case of Commonwealth of Pennsylvania v. William S. Leib.

Indictment charging forgery and uttering and publishing four forged duplicate tax receipts of the treasurer of Pennsylvania. Before Johnson, P. J., 17th Judicial District, specially presiding.

Verdict of guilty on the charge of forgery and not guilty on the charge of uttering a forged instrument. Defendant appealed.

The facts are stated in the opinion of the court below dismissing motion for a new trial.

The defendant was indicted on four bills of indictment, each containing two counts. The first count in each bill charged that the defendant unlawfully and fraudulently made and signed, and was concerned in the fraudulent making and signing, certain written instruments called duplicate tax receipts, purporting to be duplicate tax receipts from the state treasurer of the Commonwealth of Pennsylvania for the payment of money to the said Commonwealth by the Merchant & Evans Company on account of taxes and purporting to be duly registered and countersigned for the auditor general of said Commonwealth to the prejudice of the rights of Merchant & Evans Company with intent to defraud. The second count of each bill charged the defendant with unlawfully and fraudulently uttering and publishing the aforesaid unlawful and fraudulent instruments to the prejudice of the rights of the said Merchant & Evans Company and of the Commonwealth of Pennsylvania with intent to defraud, the defendant at the time of uttering well knowing the said instruments to be fraudulently written. The defendant was acquitted on the charges of uttering contained in the second counts of the four bills but was convicted of the charges of forgery contained in the first counts.

The defendant is now asking for a new trial and has assigned forty-four reasons:

The 1st, 2d, 3d, 22d, 23d, and 24th reasons raise the question of the sufficiency of the evidence to show that the defendant made and signed and was concerned in making and signing the said duplicate tax receipts in the County of Philadelphia. There was sufficient evidence for submission to the jury that the defendant made and signed and was concerned in making and signing these duplicate tax receipts, in the County of Philadelphia. There was evidence that he received the blank forms of the duplicate tax receipts that figures and handwriting on the receipts were in the handwriting of the defendant; that the defendant was in Philadelphia with the forged receipts in his possession, and that in January, 1919, the defendant handed said receipts to James D. Evans in Philadelphia, claiming that they were duplicates because the originals had been lost or mislaid. The evidence was overwhelming that the duplicate tax receipts were forged. The evidence was also convincing that the defendant had them in his possession in Philadelphia and delivered them to James D. Evans. There was sufficient evidence for submission to the jury on all counts and the fact that the jury acquitted the defendant on the charges of uttering is no reason against sustaining the verdict of guilty on the charges of forgery in Philadelphia. The receipts were forged. There was convincing evidence that the defendant had the forged instruments in his possession in Philadelphia County where he delivered them to Evans and there is no evidence to show that they were forged in any other county or place. We cannot dismiss from consideration the evidence of forgery in Philadelphia because the jury for some unknown reason acquitted the defendant of uttering the receipts in Philadelphia. There were sufficient facts and circumstances from which the jury were warranted in convicting the defendant of forging these tax receipts in Philadelphia County, and the jury have found the receipts were forged in Philadelphia and their verdict should not be disturbed: 19 Cyc. 1425 and cases therein cited; U.S. v. Britton, 2 Mason 464; State v. Poindexter, 23 W.Va. 805; Com. v. Sheriff, 10 Pa.C.C. 341; Com. v. Thomas, 1 Pitts. Rep. 279.

In the 4th, 5th, and 6th reasons the defendant complains that the court committed error in charging that the forgery of the receipts were to the injury of the Merchant & Evans Company and the Commonwealth of Pennsylvania. It is sufficient to allege in the indictment that the forgery injured some person. It was sufficient here to allege an injury either to the Merchant & Evans Company or the Commonwealth of Pennsylvania, or both but the forgery must be to the injury of some person. It was alleged in the second counts that the injury was to the Merchant & Evans Company and the Commonwealth of Pennsylvania, but in the first counts the injury was alleged to be against Merchant & Evans Company. Where there is a forgery the crime is made out when it is shown that it is to the injury of any person and the jury were clearly instructed that there could be no verdict of guilty unless all of the elements of the crime were made out and the fact that the court joined in the same sentence the Merchant & Evans Company and the Commonwealth of Pennsylvania as the persons injured was not error and did the defendant no harm.

The 7th, 8th, 9th, 10th, 11th, and 16th reasons complain that the court committed error in charging the jury as to the Commonwealth's contention that the defendant appropriated the proceeds of the check for $ 5,171.70 paid him by the Merchant & Evans Company on October 8, 1918, to his own use. There was sufficient evidence to show that the defendant did appropriate the proceeds of this check to his own use and did forge the duplicate tax receipts and deliver the same to James D. Evans in Philadelphia. The jury were clearly instructed that they were not trying the defendant on a charge of appropriation of the proceeds of the check, but for forging the duplicate tax receipts and for uttering the same and the reference to the appropriation of the proceeds of the check by the defendant was made only for the purpose of throwing some light upon the question of forgery of the receipts and the uttering of the same. Had there been no appropriation of the proceeds of the check by the defendant to his own use there would have been no occasion for the forgery of the duplicate tax receipts and the evidence of appropriation of the proceeds of the check had some bearing upon the question of forgery of the receipts and uttering the same and it was for this reason that the court drew the attention of the jury to the Commonwealth's contention that the proceeds of the check had been appropriated by the defendant to his own use.

The 12th, 13th, 14th, 15th, 20th, and 25th reasons complain of the court's charge to the jury in regard to the defense. We think the charge covered every element of the defense and was fair and adequate and sufficient to give the jury a full understanding of it. The charge was long and by reading the entire charge it will be discovered that the defense in all its branches were stated and restated time and again and the defendant's counsel asked for additional instructions which were given.

The 17th, 26th, 27th, 28th, 30th, 31st, and 34th reasons relate to the defendant's contention that the duplicate tax receipts were not the subject of forgery; first, because they were not countersigned by the auditor general, secondly because they were not sealed, and thirdly because tax receipts are not the subject of forgery.

The receipts purport to be signed by " D. B. Atthews for Charles A. Snyder, auditor general." This is sufficient under the evidence in this case. The genuine receipts show that they were countersigned by a man who had done so for twenty years and he countersigned " For Charles A. Snyder, Auditor General." That is the recognized official signature of the office of the auditor general and the forged receipts purport to be signed in the same manner as the genuine receipts. It is contended by the defendant that the receipts, if genuine, were not valid because there was no seal of the state treasurer attached thereto, and therefore these receipts are not the subject of forgery but it is not necessary that the forged receipt purport to contain the seal of the state treasurer. The writing to be the subject of forgery need only be of apparent legal efficacy. It is sufficient if it has such an apparent legal efficacy as to deceive and defraud: Com. v. Compton, 11 Pa. Dist. 119. It is contended further that tax receipts are not the subject of forgery. This contention cannot be sustained. Our statute is comprehensive and applies to " Any writing." In Commonwealth v. Wilson, 44 Pa.Super. 183, on page 187, it is said " Text writers and Judges agree that as a general rule any writing in such form as to be the means of defrauding another may be the subject of forgery or of alteration in the nature of forgery. The offense may be committed in respect to any writing which, if genuine, would operate as a foundation of another's liability. If it is calculated to deceive and intended to be used for a fraudulent purpose that is sufficient. See also Com. v. Fitzgerald, 3 Pa. Dist. 305; Com. v. Wentz, 20 Pa. Dist. 820; Com. v. Brown, 10 Phila. 184; Com. v. Phipps, 16 Phila. 457; Com. v. Kemmerer, 9 Lack. Jurist 205; Biles v. Com., 32 Pa. 529, where Judge Read says: " A receipt or acquittance may be the subject of forgery."

In the 29th reason the defendant complains that the charge was...