Commonwealth v. Schmunk

• Decision Date: 04 January 1904
• Docket Number: 89
• Citation: 207 Pa. 544,56 A. 1088
• Parties: Commonwealth v. Schmunk, Appellant
• Court: Pennsylvania Supreme Court

56 A. 1088

207 Pa. 544

Commonwealth v. Schmunk, Appellant

No. 89

Supreme Court of Pennsylvania

January 4, 1904

Argued November 2, 1903

Appeal, No. 89, Oct. T., 1903, by defendant, from judgment of Superior Ct., April T., 1903, No. 61, affirming judgment of Q.S. Allegheny Co., Sept. T., 1901, No. 1285, on verdict of guilty in case of Commonwealth v. Charles E. Schmunk. Affirmed.

Appeal from Superior Court. See 22 Pa.Super. 348.

Error assigned was the judgment of the Superior Court.

The judgment of the Superior Court and its order that the record be remitted to the court below, for the purpose of carrying out the sentence there imposed, are affirmed.

George Quintard Horwitz, with him H. H. Patterson and E. W. Arthur for appellant.

A. Leo Weil, with him John C. Haymaker, district attorney, William D. Grimes, assistant district attorney, and Charles M. Thorp for appellee.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE BROWN:

The facts of this case appear in the report of it in 22 Pa.Super. 348. In the opinion of that court, affirming the judgment of the court below, it was properly said: "The verdict of the jury conclusively establishes that the important facts in the statement mailed by the defendant were false and had been designedly and knowingly made with intent to cheat and defraud the New York Company, that the New York Company had relied and acted upon the statement, believing it to be a truthful one, and that the defendant received the goods in Allegheny county. The verdict of guilty was fully justified by the evidence, which phase of the case is not questioned by the appellant." In the statement of questions involved on this appeal we are asked to consider nothing but the jurisdiction of the court of quarter sessions of Allegheny county to try the appellant on the indictment found against him. In their printed brief, however, his counsel contend as a reason for reversing the judgment, "that the commonwealth utterly and absolutely failed to show actual possession by the defendant or by the company of which he was an officer, or by any one in whom he was interested." We pass this by with the simple comment that, in the statement of questions involved, it is admitted that the goods were received by the consignees; and the jury, under the testimony of Edward R. Gilmore as to what took place between him and Schmunk in January or February, 1900, uncontradicted by the latter, were fully justified in finding that the goods had been received by the consignee in Allegheny county.

That there was a delivery to the consignee of the goods in New York, by delivering them to the common carrier in that state is not to be questioned, and it is equally clear that the title and right of possession passed there to the consignee, but to this delivery of title and right of possession of the goods there was a string. If at any time while in the custody of the common carrier on their way to the consignee the fraud practiced upon the prosecutor had been discovered, the string could have been pulled and the goods could have been stopped in transitu, and, under a rescission of the contract, reclaimed and retaken by the vendor. This, however, is not the question now before us. What we are to decide is, whether the offense of false pretense charged against the defendant was committed within the county of Allegheny. The offense under the statute is obtaining the chattels of another by false pretenses with intent to cheat and defraud him of the same. The pretenses themselves do not constitute the crime. They are but the means for its accomplishment. In this case they were made in Allegheny county when the misrepresentations were mailed to New York for the purpose of carrying out the intention to cheat, which had been formed here. All the defendant did he did in Allegheny county and what he set out to accomplish in his scheme was accomplished there. The offense charged against him is not that he procured a technical delivery to himself by a delivery of the goods to a common carrier in another state, but it is that he actually obtained them. This he did only when they reached him in the county in which he was indicted, as is charged in the indictment. In so holding the court...