Commonwealth v. Mezick

• Decision Date: 28 February 1942
• Parties: COMMONWEALTH v. MEZICK.
• Court: Pennsylvania Superior Court

24 A.2d 762

COMMONWEALTH
v.
MEZICK.

Superior Court of Pennsylvania.

Feb. 28, 1942.

24 A.2d 763

[Copyrighted material omitted.]

24 A.2d 764

Appeal No. 41, February term, 1942, from judgment of Court of Quarter Sessions, Susquehanna County, at No. 6, January Term, 1941; Edw. P. Little, President Judge.

Daniel Mezick was convicted of conspiring with others to cheat and defraud the Carolina Fire Insurance Company, the Homestead Insurance Company, and the Home Underwriters Fire Insurance Company, and he appeals.

Assignments of error overruled and judgment affirmed with direction.

Before KELLER, P. J, and CUNNINGHAM, BALDRIGE, STADTFELD, RHODES, HIRT, and KENWORTHEY, JJ.

Edward M. Murphy, of Scranton, for appellant.

Joseph L. Carrigg, Dist. Atty, of Susquehanna, for appellee.

KELLER, President Judge.

Three true bills were returned in Susquehanna County to January Sessions, 1941, charging that the appellant, Daniel Mezick, and John Buchla, John Mezick and John Oshmankewicz had jointly conspired to cheat and defraud the Carolina Fire Insurance Co. (No. 6), the Homestead Insurance Company (No. 7) and the Home Underwriters Fire Insurance Co. (No. 8). The bills were drawn under section 302 of the Criminal Code of June 24, 1939, P.L. 872, 18 P.S. § 4302.

By consent of all parties, the three bills were consolidated and tried as one, resulting in a verdict of guilty as to all four defendants. A motion in arrest of judgment was refused. Rules for new trial were discharged as to all but John Oshmankewicz, and a new trial was granted him. Sentence was imposed on the other three defendants. Daniel Mezick appealed.

The statement of questions involved, which limits the scope of our review on appeal, presents three subjects for our consideration, in addition to the "stock" refusals of a new trial and arrest of judgment, viz.:

1—The jurisdiction of the court.

2—The sufficiency of the evidence to establish an unlawful confederation.

3—Alleged errors in rulings on evidence and the charge of the court.

(1) The appellant contends that the Court of Quarter Sessions of Susquehanna County had no jurisdiction because there was no proof of any unlawful combination or confederation within that county, all the defendants being residents of Lackawanna County or Luzerne County. But it is well settled that prosecution for criminal conspiracy may be brought in the county where the unlawful combination or confederation was formed, or in any county where an overt act was committed by any of the conspirators in furtherance of that unlawful combination or confederacy. Com. v. Spencer, 6 Pa.Super. 256, 268, 269; Com. v. Barnes, 107 Pa.Super. 46, 59, 162 A. 670; Com. v. Bartilson, 85 Pa. 482, 489. An overt act is distinguished from that which rests merely in intention or design and as used in the law of conspiracy it means an act done in furtherance of the object of the conspiracy. In this Commonwealth, the common-law rule prevails. No overt act need be set forth in the indictment,¹ Com. v. McKisson, 8 Serg. & R. 420, 11 Am.Dec. 630, Gibson, J.; and none need be proved to sustain a conviction for conspiracy. Com. v. Richardson, 229 Pa. 609, 611, 79 A. 222, affirming 42 Pa.Super. 337, 342, Rice, P. J. When proved, such acts are admitted as evidence of the unlawful combination and the criminal intent. The unlawful confederacy is the gist of the offense. Com. v. Brown, 23 Pa.Super. 470, 490, Rice, P. J.; Collins v. Com, 3 Serg. & R. 220, 226, 227, Duncan, J.; Hyde v. United States, 225 U.S. 347, 365, 366, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas.1914A, 614. The residence of the conspirators is unimportant. Com. v. Gillespie, 7 Serg. & R. 469, 477, 10 Am.Dec. 475, Duncan, J. They may be prosecuted wherever any act is done by any of them in furthering or carrying out the unlawful confederation. In the present case the alleged criminal conspiracy was a combination or confederation to cheat and defraud three fire insurance companies by greatly over-insuring a building and its contents so that in case of a fire causing their destruction, they would be unlawfully enriched at the expense of the insurers. The building and contents insured were located in Susquehanna County. Acts were done in that county by some of the conspirators—for which all of them were chargeable. Com. v. Strantz, 328 Pa. 33, 40, 195 A. 75, 79; Com. v. Rhey, 140 Pa.Super. 340, 351, 14 A.2d 192—which tended to bring about the fruition or consummation

24 A.2d 765

of the unlawful combination. Therefore a prosecution might be brought in Susquehanna County.

(2) At the conclusion of the Commonwealth's case, the defendants demurred to the evidence. See Act of June 5, 1937, P. L. 1703, 19 P.S. § 491. The court overruled the demurrer and the defendants produced evidence in their behalf, although they themselves did not take the witness stand and testify. This overruling of the demurrer is now assigned for error (eighth assignment), and raises the question of the sufficiency of the evidence to convict. The disposition of it will require some reference to...