Commonwealth v. Wiswesser

• Decision Date: 17 December 1936
• Docket Number: 279-1936
• Citation: 124 Pa.Super. 251,188 A. 604
• Parties: Commonwealth v. Wiswesser, Appellant
• Court: Pennsylvania Superior Court

188 A. 604

124 Pa.Super. 251

Commonwealth v. Wiswesser, Appellant

No. 279-1936

Superior Court of Pennsylvania

December 17, 1936

Argued September 30, 1936

Appeal by defendant, from judgment and sentence of Q. S. Berks Co March Sessions, 1936, No. 248, in case of Commonwealth v Louis E. Wiswesser.

Indictment for aiding and abetting county treasurer, in fraudulent conversion to his own name, fraudulent investment, and the defalcation, of public moneys entrusted to treasurer. Before Schaeffer, P. J.

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

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

Errors assigned, among others, were various rulings on evidence.

Judgment reversed and new trial awarded.

B. D. Oliensis, with him Wm. Abbott Witman, Jr., J. Howard Jacobs and Emanuel Weiss, for appellant.

Mark C. McQuillen, Assistant District Attorney, with him John A. Rieser, District Attorney, for appellee.

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

OPINION

Keller, P. J.

The defendant was tried on an indictment containing three counts, which charged him with having aided and abetted Robert R. Gerhart, the county treasurer of Berks County, in (1) the fraudulent conversion to his own use, (2) the fraudulent investment, and (3) the defalcation, of public moneys entrusted to him as such treasurer. There was ample evidence to support the verdict. If this court possessed the broad powers committed to the judges of the English Court of Criminal Appeal by the Criminal Appeal Act of 1907, and particularly the power to dismiss an appeal if they considered that no substantial miscarriage of justice had occurred, even though they were of opinion that the point raised by the appeal might be decided in favor of the appellant, we would dismiss this appeal. But by the long established practice in this commonwealth, which we are required to follow -- (Act of June 24, 1895, P. L. 212, sec. 10, p. 220) -- the appeal must be sustained and a new trial granted if substantial error was committed in the court below, which may have influenced the verdict to the defendant's injury. (Goersen v. Com., 99 Pa. 388; Com. v. Williams, 307 Pa. 134, 141, 142, 160 A. 602; Com. v. Loomis, 270 Pa. 254, 261 to 263, 113 A. 428; Com. v. Mull, 316 Pa. 424, 427, 175 A. 418; Com. v. Croson, 243 Pa. 19, 89 A. 821; Com. v. Weiner, 101 Pa.Super. 295, 299). It is only harmless error, such as the appellate court is satisfied did no injury to the defendant, which may be disregarded on appeal. (Com. v. Varano, 258 Pa. 442, 102 A. 131; Com. v. Emery, 273 Pa. 517, 117 A. 338; Com. v. Martin, 302 Pa. 118, 153 A. 141; Com. v. Craig, 19 Pa.Super. 81, 96). A careful reading of the record in the case satisfies us that substantial error was committed by the learned trial judge in the allowance of questions asked the defendant on his cross-examination, and the answers to them (Com. v. Craig, supra), as well as in his own examination of the defendant, and that this error may have influenced the jury, to the defendant's injury, in arriving at their verdict. Hence we are obliged to order a new trial.

We shall not discuss in detail the nineteen assignments of error filed by the appellant. We have given them all due consideration and are of opinion that none of them, except those referred to above, -- assignments two and three -- requires a reversal of the judgment. A considerable part of the brief and argument was devoted by appellant's present counsel to a point not raised in the court below nor covered by an assignment of error: It is alleged that the time laid in the indictment for the commission of said offenses, -- February 21, 1936 -- was subsequent to the expiration of the county treasurer's term of office, which is said to have been, January 6, 1936. As before stated, the matter was not raised in the court below by motion to quash or demurrer, nor brought to the attention of that court by any motion filed before sentence was imposed. The defendant went to trial without objection to the alleged defect in the indictment, if it existed. The testimony in the case, which, by the Act of April 18, 1919, P. L. 72, is made part of the record on appeal, shows conclusively that all the acts constituting the offenses charged were done or committed while the county treasurer, Gerhart, was still in office. Had the point first argued in this court been raised in the court below the indictment could have been amended to conform to the facts proved. The Criminal Procedure Act of March 31, 1860, P. L. 427, in sections 11, 12 and 13, makes liberal provision for the amendment of indictments. In Myers et al. v. Com. 79 Pa. 308, after the jury had been sworn, the court ordered the time laid in the indictment, wherever it occurred, to be changed from October 11, 1874 to November 11, 1874, and the Supreme Court held the amendment was within the Act of 1860. In Com. v. Tassone, 246 Pa. 543, 92 A. 713, after verdict of guilty in a murder case, the court permitted the date laid in the indictment, October 31, 1914, to be amended to October 31, 1913, as the former was a palpable error in that it charged that the offense had been committed more than six months after the date of trial. The Supreme Court, on appeal, sustained the action of the lower court, saying: "A mis-statement in an indictment of the date of the commission of a crime is a mere formal defect if it be shown on the trial that the offense charged had been committed: Commonwealth v. Major, 198 Pa. 290, 47 A. 741; Commonwealth v. Powell, 23 Pa.Super. 370. The wrong date disclosed in the indictment returned by the grand jury in this case having been a mere formal defect, it was cured by the amendment clearly allowable under the Act of March 31, 1860, and there is, therefore, no merit in the main contention of learned counsel for the prisoner." See also Com. v. Lingle, 120 Pa.Super. 434, 182 A. 802; Com v. Schoen, 25 Pa.Super. 211; Com. v. Brennan, 193 Pa. 567, 44 A. 498. As it was amendable if the point had been raised on the trial, it is too late to raise it now. Furthermore, apart from the evidence which establishes that the acts complained of were committed during the county treasurer's term of office and within the period prescribed by the statute of limitations, there is nothing in the record to show that the treasurer's term of office expired before February 21, 1936, the date laid in the indictment. There are no facts in the record, apart from the evidence, which show any mistake or error whatever in the date laid in the indictment.

The relevant facts, as brought out in the trial, may be summarized from the opinion filed by the learned President Judge of the court below, as follows: "Robert R. Gerhart was the County Treasurer of Berks County for the term of four years ending the first Monday of January, 1936. An audit of his accounts disclosed a shortage of $ 64,612.61. At the close of his term he had in his possession 41 checks received from the defendant here, the total of which equalled exactly the amount of the shortage. Five of these checks, aggregating $ 25,815, were checks drawn by this defendant individually to the order of Gerhart; twelve, totalling $ 22,434.16, were drawn by Deppen Manufacturing Company, [a brewing company of which defendant was president and the practical owner] by Louis E. Wiswesser, President, or simply Louis E. Wiswesser, President, to the order of Wiswesser himself and endorsed by him, or, in one case to George Michael and endorsed by him; one was drawn by John F. Hyneman, Agent, to the order of Deppen Manufacturing Company and endorsed by defendant as president; one was drawn by Hof Brau Cafe to the order of Deppen Manufacturing Company and endorsed by defendant as president; and the remaining 22 checks, totalling $ 8,424.35, were drawn by Dutkin Bros., Inc., to the order of the Deppen Manufacturing Company and endorsed by defendant as president. But one of these checks -- that of John F. Hyneman -- showed that it had been deposited in a bank for collection; that one had been returned because of insufficient funds. The personal checks of Wiswesser were dated February 10, 1934, April 25, 1934, May 10, 1934, and August 9, 1934. The checks of the Deppen Manufacturing Company bore dates beginning September 10, 1935, and ending November 27, 1935. The Hyneman and Hof Brau checks were dated October and November, 1935; and the Dutkin checks from May 27, 1935, to August 22, 1935. Gerhart also held six promissory notes dated September 14, 16, 17, 19 and 28 and October 30, 1935, drawn by the Deppen Manufacturing Company to the order of Gerhart for the total amount of $ 63,352.51, which is the amount of the total shortage, less the Hyneman and Hof Brau checks."

The evidence in the case, as we view it, was such as to leave one with an open mind no reasonable doubt that the defendant knew that Gerhart was cashing these checks out of county funds -- they were brought to the county treasurer's office and cashed there; that they were not intended to be presented to the bank or banks on which they were drawn for payment; that when defendant's checks and those of Deppen Manufacturing Company were drawn and cashed there was not sufficient funds in the drawer's account to meet them, and that the defendant knew this. The evidence was so convincing and overwhelming that the trial judge, in our opinion, committed no error in his charge to the jury in saying: "Without endeavoring to influence you or control you, it does not seem to me that there should be any difficulty in your minds in concluding beyond all doubt that county funds were used. But that is not sufficient to establish the guilt of Wiswesser." Then after a full review...