Commonwealth v. Pearlman

• Citation: 191 A. 365,126 Pa.Super. 461
• Decision Date: 15 April 1937
• Docket Number: 368-1936
• Parties: Commonwealth v. Pearlman, Appellant
• Court: Pennsylvania Superior Court

191 A. 365

126 Pa.Super. 461

Commonwealth v. Pearlman, Appellant

No. 368-1936

Superior Court of Pennsylvania

April 15, 1937

Argued September 28, 1936

Appeal from judgment of Q. S. Phila. Co., Feb. Sessions, 1936, No 473, in case of Commonwealth v. Samuel I. Pearlman, alias Samuel I. Perlman.

Indictment charging defendant with being concerned in the making of a forged bail bond and justification of surety, and with actually uttering and publishing the same. Before Lamberton J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty and judgment of sentence thereon, Defendant appealed.

Errors assigned related to errors in charge of the court, rulings on the admission of evidence, and the dismissal of a motion to set aside the verdict and a motion for a new trial.

Judgment affirmed.

Abraham Wernick, for appellant.

Vincent P. McDevitt, Assistant District Attorney, with him Charles F. Kelley, District Attorney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ. Opinion by James, J.

OPINION

James, J.

Samuel I. Pearlman was convicted and sentenced on an indictment to No. 473, February Term, 1936, charging him with having on the 13th day of November, 1934, been concerned in the making of a fraudulent written instrument commonly known as and called a recognizance bail bond and justification of surety, before a magistrate, and with actually uttering and publishing it. Although sentence was solely on this indictment, he had been jointly tried and convicted upon twelve other indictments charging similar offenses on different dates before different magistrates, and an indictment charging conspiracy. Sentence was suspended on these indictments. In all of the indictments, Michael Warren and his wife, Ethel Warren, alias Dora Sarsoff, were jointly indicted with defendant. Prior to the trial, Michael Warren and Ethel Warren pleaded guilty to all of the above indictments and also to a number of indictments charging them with perjury, upon which sentence was not imposed. Defendant's motion for a new trial having been refused, sentence was imposed, from which this appeal was taken.

Appellant submits ninety-one separate assignments of error. We have given consideration to all of them, but owing to their number and character, we shall only discuss at length those assignments which we believe worthy of consideration. The record contains nearly 600 pages of testimony, a resume of which cannot be better stated than as set forth in the opinion of the court below in refusing the motion for a new trial: "Michael Warren and Ethel Warren testified, in substance, that defendant, having heard that the Warrens were going bail, got in touch with Michael Warren by telephone; that subsequently the two Warrens and defendant had a conference at which the Warrens produced three deeds in which Dora Sarsoff, the mother of Ethel Warren, was named as grantee; that these deeds had been stolen from Dora Sarsoff; that an arrangement was then agreed upon whereby when defendant wished to have bail entered he would telephone to Michael Warren, who would in turn get in touch with Ethel Warren, and Ethel Warren would then go to defendant's office and the two of them together would go to the office of the magistrate in question, where Ethel Warren would be introduced to the magistrate as Dora Sarsoff, would present her mother's deeds, and would sign the name Dora Sarsoff to the bail bond; that this procedure was followed many times, and that the Warrens received three percent as their commission for entering bail; that Ethel Warren became alarmed at the amount of bail which she was entering and protested, but defendant urged her to perjure herself as to the assessment of the properties in question and as to the amount of bail for which the properties were already security; that Ethel Warren did so perjure herself and the magistrates continued to take her as bail. This testimony of the Warrens was corroborated to some extent by defendant and to some extent by other witnesses called on behalf of the Commonwealth. Defendant testified that he had a meeting with Michael Warren, and that subsequently Michael Warren represented that Ethel Warren was his (Michael Warren's) secretary, and that her name was Dora Sarsoff; that defendant went with Ethel Warren on four occasions when bail was being entered, but did so in the belief that Ethel Warren was in fact Dora Sarsoff, and was a single woman; that in regard to the other nine transactions defendant had no connection with them whatever. Defendant denied that he ever urged Ethel Warren to commit perjury, or that he knew that she did so."

Appellant's argument may be divided and considered under three general headings: First, errors in the charge of the court; second, rulings on the admission of evidence; and third, the dismissal of a motion to set aside the verdict and a motion for a new trial.

In regard to the charge, the first group of assignments, 78, 79 and 80, relate to that portion of the charge which states that the jury might convict if the defendant knew that the maker of the bail bond was a married woman or that the bail bond contained false statements. The relevant portions of the charge are as follows: "Now, members of the jury, what is the element of fraud averred here by the Commonwealth: First, that the name of the person who signed the bonds was Ethel Warren and not Dora Sarsoff, and that she signed the name Dora Sarsoff without the authority of the real Dora Sarsoff. If so, those papers were fraudulently made and uttered within the meaning of the Act of Assembly. Second, that the person who signed the bonds was a married woman and the signature which she affixed thereto was the signature of a married woman. A married woman cannot be held liable on such an obligation in the Commonwealth of Pennsylvania; so, if a married woman, knowing that defect in her suretyship, signs such a bond, concealing the fact that she is married, that would be fraud. So if that element is present in this case the bonds in question were fraudulently made and uttered. Third, there is testimony to the effect that the bonds were supported by perjured statements, perjured statements as to assessed valuations and perjured statements as to other securities for which that particular property had been pledged. I say to you if these bonds were supported by perjured statements of that nature they were made and uttered fraudulently and contrary to the provisions of the Act . . . . So the test to apply to Pearlman after you have determined whether he was concerned in any way, in four or in thirteen, is whether he knew of the fraud that was going on or whether he was acting in innocence. Did Pearlman know that the person who signed these bonds was not Dora Sarsoff? Did he know that she was a married woman? Did he cause her to make the false statements supporting those bonds? If you find in regard to any particular indictment that he was not at all concerned in it, he is out of the picture and he is not guilty. If you find that he was concerned in it, then the test to be applied to him is whether he was concerned with knowledge that the person who signed was not Dora Sarsoff, or with knowledge that she was a married woman, and therefore worthless as bail; or, if he was concerned in such a way as to induce her to make false statements; if so, if any one of those three are in any case, he is guilty in that case. If not, he is not guilty."

The record is replete with testimony from which the jury could find that appellant knew Ethel Warren was not Dora Sarsoff, that she was a married woman and as such could not enter bail, and that the statements made in the bonds were false.

Appellant contends that the charge as quoted above is erroneous because the Act of March 31, 1860, P. L. 382, § 169, 18 PS § 3631, applies only to forgeries and not to the making, uttering or publishing of instruments which contain false statements but not forged signatures. He argues that there is a distinction between fraudulently made instruments and fraudulent instruments, and that the statute applies only to the former. Appellant relies largely on De Rose v. People, L. R. A. 1918 C. 1193-95, a Colorado case. In that case it was held that the defendant, in making up and signing a time roll, in which he had made a false statement, did not violate a statute prohibiting the "false making" of an instrument. In Biles v. Com., 32 Pa. 529, it was held that the making of a false entry in a journal by a bookkeeper with intent to defraud his employer was a forgery at common law. The forgery was perpetrated by the false addition of the items of cash from bills receivable on a page of the journal of the firm.

A year later, the Act of 1860, supra, under which appellant was indicted, was enacted. It reads: "If any person shall fraudulently make, sign, alter, utter or publish, or be concerned in the fraudulent making, signing, altering, uttering, or publishing any written instrument, other than notes, bills, checks or drafts already mentioned, to the prejudice of another's right, with intent to defraud any person or body corporate, or shall fraudulently cause or procure the same to be done, he shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years."

It is pointed out in Purdon's historical note that, "This section is intended to embrace the large class of forgeries of written instruments, not embraced in the preceding sections, which have special reference to bank-paper, and which are now punished at common law. Report on the ...