Commonwealth v. Morris
| Decision Date | 21 November 1927 |
| Docket Number | 25-1928,20-1928,27-1928,21-1928,23-1928,22-1928,26-1928,24-1928 |
| Citation | 91 Pa.Super. 571 |
| Parties | Commonwealth v. Morris et al., Appellants |
| Court | Pennsylvania Superior Court |
Argued October 3, 1927
Appeals by defendants from judgment of Q. S. Luzerne County April Sessions, 1927, No. 270, in the case of Commonwealth of Pennsylvania v. William H. Morris, David Richards, William B Delaney, P. J. Lenahan, James J. Curry, P. F. Boyle, John A. Reily, Ralph M. Herr, Herman Mailander.
Indictment for conspiracy to defraud a school district by letting a contract at an excessive price. Before Fuller, P. J.
Verdict of guilty upon which judgment of sentence was passed. Defendants appealed.
Errors assigned, among others, were refusal to quash the indictment and the charge of the court.
Affirmed.
Frank A. McGuigan, and with him Richard B. Shridan, Evan C. Jones, Charles B. Lenahan, Abram Salsburg, Wilfrid Jones, Thomas F. Farrell and Robert L. Coughlin, for appellants.
Thomas M. Lewis, District Attorney, and with him John R. Hessel, Herman J. Goldberg, Assistant District Attorneys, M. F. McDonald and W. A. Valentine, for appellees.
Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.
Appellants were convicted and are under sentence on an indictment charging that six of them, being duly qualified and acting school directors for the school district of the Township of Hanover in Luzerne County, and one Boyle, the other school director for the district, and the defendant Herr, who was employed as an architect by the school district, and the defendant Mailander, unlawfully conspired to cheat and defraud the school district out of a sum of money amounting to about $ 4,000, by fraudulently and dishonestly procuring the award to the defendant Mailander of a contract to do certain work at the Thomas Jefferson School at an excessive price, and by the fraudulent and dishonest performance of the same.
A motion was made in the court below to quash the indictment for the following reason: The court refused to permit appellants to produce such testimony and denied the motion to quash. This action is the subject of the first and second assignments of error.
It should be observed that the contention made for appellants is not that they were not permitted to prove that no witnesses testified before the grand jury. They state in their brief " that testimony of the witnesses who testified, and the stenographerwho took their testimony, showing that the testimony given had no relation whatever to the averments in the indictment, was admissible and should have been heard." Manifestly, the gravamen of the complaint is that the testimony of the witnesses whose names were endorsed upon the bill did not support the averments therein. Therefore, the question is whether a defendant has the right to allege and attempt to prove that the testimony given before a grand jury by witnesses legally competent to testify, whose names were duly endorsed upon the bill, was insufficient to make out a prima facie case. It is well settled in this State that an indictment may be quashed for matters not apparent upon the face of the record (Com. v. Bradney, 126 Pa. 199, 17 A. 600; Com. v. Green, 126 Pa. 531, 17 A. 878; and Com. v. Ross, 58 Pa.Super. 412), as where an outside party has interfered with the grand jury during its deliberations upon the case (Com. v. Bradney, supra); or where a presentment has been made upon the testimony of witnesses examined upon a different charge against another defendant and not from the personal knowledge or observation of the grand jurors (Com. v. Green, supra); or where no witnesses appear before the grand jury; or where the only witnesses who appeared before them were persons whose names were not endorsed upon the bill and therefore could not be sworn by the grand jury (Act of March 31, 1860, P. L. 427); or perhaps where the only witnesses appearing before the grand jury were legally incompetent to testify. But none of the cases decides or even intimates that a defendant may call and examine the witnesses who testified before the grand jury to prove that their testimony before that body was insufficient to warrant the return of a true bill. Such a practice would amount to an appeal from the finding of the grand jury to the court. It would introduce a practice in the criminal law which would be not only novel, but revolutionary. It is generally held that an indictment will not be quashed on the ground of insufficiency of the evidence where some witnesses were examined by the grand jury: 31 C. J. 808. We find no merit in these assignments.
When the case was called for trial, Boyle entered a plea of nolo contendere, took the stand for the Commonwealth and testified in detail as to how his coschool directors and Herr and Mailander entered into a corrupt bargain to have the school board let a contract to Mailander to construct a sump near the Thomas Jefferson School, which had just been com-completed, and make a fill in the front thereof, which work would cost him about $ 4,000, at a price which would give the parties to the bargain a " kick-back" of about $ 4,000; that the contract was awarded to Mailander at $ 8,370; and that after the work was done and Mailander was paid, he put $ 4,000 into a pool made up from several sources, one of which was Herr, which was divided among the school directors. Other witnesses called by the Commonwealth testified that the contract price exceeded the fair market price of the work done by about $ 4,000. By the third and fourth assignments of error there is presented the question whether the trial judge erred when he charged on the subject of the corroboration of the accomplice Boyle, as follows:
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Bauman v. Bauman
...may believe all or part of the testimony of either party. Commonwealth v. Gazal, 185 Pa.Super. 91, 137 A.2d 814 (1958); Commonwealth v. Morris, 91 Pa.Super. 571 (1927). Notwithstanding the fact that appellant had previously approved the interrogatories, she now contends that the jury's resp......