Commonwealth v. Zuern , 1901 Pa. Super. LEXIS 115 ( 1901 )

Opinion by

William W. Porter, J.,

The appellants were convicted under an indictment charging them with conspiracy to cheat and defraud the borough of Shamokin. The facts are to be gathered from some 1,200 pages of printed testimony submitted by the commonwealth, — the defendants offering no evidence. Thirteen persons were originally indicted. Two were not tried. Three were acquitted. Eight were convicted and now appeal. Of the eight, five were members of the borough council, viz: Zuern, Holl, Reed, Reppard and Zimmerman, and three, Dixe.y, Rothschild and Boas, were alleged to be interested in procuring contracts for street paving for which bids were invited by the borough.

We have reached the conclusion that the judgment of the court below, as to the five members of council, must be affirmed, and that as to the three other defendants, it must be reversed. The first conclusion involves passing upon a large number of assignments of error. The second does not. We, therefore, take up the discussion of the second branch of the case first.

We are of opinion that the judgment as to Dixey, Rothschild and Boas should be reversed because the testimony offered by the commonwealth does not sufficiently connect them with the conspiracy charged. No common design, concert or combination is shown either between these three or between them, or any of them, and the convicted councihnen. Dixey represented the Alcatraz Paving Company, which was desirous of securing the work of laying the pavement upon the several streets of the borough. Boas represented the Montello Brick Company, which desired to furnish the brick for said pavements and was in competition with the Clearfield Brick Company, the Canton Brick Company, and a large number of others. Rothschild, a clothing dealer in Shamokin, was alleged to be an agent for the Montello Brick Company. The three defendants acquitted were two alleged representatives of the Clearfield Brick Company and a representative of a firm of contractors bidding on the paving work.

Assuming that there was a conspiracy shown among the councilmen to cheat and defraud the borough of Shamokin, it was incumbent upon the commonwealth to prove a participation in the common project or design, by the three defendants named, in order to convict them. The indictment is general in its terms. It charges that all the defendants “ fraudulently, falsely, maliciously and unlawfully did conspire, confederate and agree between and among themselves to cheat a-nd defraud the borough of Shamokin .... of its moneys, goods, chattels and other property.” The learned trial judge, in his opinion refusing to arrest the judgment, says that “ the allegations of the commonwealth are that the conspiracy was to control the awarding of brick or paving contracts by bribing members of council.” The theory of the commonwealth, by which the three defendants, named are to be brought within the indictment, seems to be that the competitive bidders upon the paving w5rk and upon the material for the work, joined each other and the councilmen of the borough in such an arrangement that the work upon the several streets to be improved should be portioned out among the several bidders, and that the councilmen should be paid for carrying this arrangement into effect by legislation. This required evidence connecting the several bidders with such an arrangement in order to hold them. But the commonwealth’s evidence shows, if the witnesses are to be believed, that there was a condition of competitive bidding. Each of the several concerns was anxious to secure for itself as much of the work as possible. No evidence was adduced showing that they met in conclave to apportion out the several contracts. If corrupt solicitation was used, it would seem that it was not to procure legislation effecting an apportionment of the work among the several bidders, but solicitation which looked to the procurement by each of the separate bidders or material men of a larger portion of the work to be done or of the materials to be furnished than that awarded to his competitors. The business concerns interested in the bidding were numerous. The representatives of some of the bidders were not indicted in this proceeding.

In corroboration of tbe assertion that as to the bidders there was no sufficient combination or concert shown, take the letting of the contract of Market and Spruce streets. For this piece of work, the evidence shows that there were some twelve separate bidders. A number of different paving materials were submitted to the council. The council adopted the Montello brick and awarded the contract to do the work to the Alcatraz Paving Company. The burgess, on petition of citizens, vetoed the ordinance. Thereupon, the contract was reawarded, as to the work, to the same paving company, but the Metropolitan brick was adopted as the paving material, instead of the Montello. This curious result follows: that included in the same bill of indictment, charged with participation in the same conspiracy, are the representative of thé contracting company, the representative of the successful bidder on material, the representative of the rejected bidder on material, and several councilmen, some of whom were advocates of one material and some of another. On such a state of facts a concert of action or a combination among the parties would scarcely be asserted. The view that no sufficient evidence of combination among the bidders was presented, is not shaken by the fact that there is some testimony of declarations made by certain councilmen (who are charged as conspirators) which indicates corrupt solicitation on the part of some of the bidders. Under certain circumstances' (as will hereafter be seen), declarations by conspirators may be shown to bind or affect their fellows, but such declarations are not admissible until the parties affected thereby have been shown to be connected in some degree with the conspiracy charged^ It was testified that some of the bidders were with some of the councilmen at a place of entertainment and at certain restaurants, where the expenses were probably paid by one or other of the bidders. .These bidders, however, represented separate interests. The testimony is not that their acts were in combination. They would seem to have been looking after their individual interests. Not a word of the testimony shows that any reference was made to the borough contracts. The worst construction that can be placed upon théir acts is that they were attempting, for individual benefit, to corruptly influence the councilmen in their impending action in respect to the work to be awarded or the material to be adopted. It is said of, Rothschild that he gave a suit of clothes and offered a sum of money to one of the councilmen to induce him to support the adoption of the Montello brick in some of the contracts. This, if true, does not bear the stamp of participation in a combination to apportion the awards of work and material, but, on the contrary, of an effort to procure the adoption of a particular material to the exclusion of others. It does not. tie him to the general conspiracy as charged and attempted to be proven. It is not possible, by the broad scope of the allegations contained in the indictment, to implicate in the conspiracy charged, any and everybody connected with all contracts of every kind had or to be had with the borough. That which gives to the crime of conspiracy its distinctive character is unity of purpose, unity of design, focalization of effort upon a particular project by the persons named in the indictment. To allege against a number of persons generally that they have conspired to cheat and defraud the borough does not enable the commonwealth to prove several conspiracies, each affecting different contracts, and different persons or groups of persons, interested in particular contracts, unless all of the contracts, and the wrong purposed in respect to them, form parts of a combination in which the parties have joined. In order that any of the defendants may be convicted of conspiracy, he must be shown to have participated in the alleged general combination or concert with all or some of the other defendants. Herein we think the proof, as to the three defendants named, failed. No attempt is here made to notice the several pieces of evidence which may seem to have a bearing on the question of the conspiracy, or participation in the wrongdoing of the borough councilmen by the three de fendants named. Such an attempt would extend the limits of this opinion beyond the bounds of usefulness and propriety. .Every item of testimony, however, has been weighed and examined. There is no sufficient evidence in the case to warrant the conviction of Dixey, Rothschild or Boas. The court below had the power to direct (Pauli v. Commonwealth, 89 Pa. 432; Krause v. Commonwealth, 93 Pa. 418; Commonwealth v. Ruddle, 142 Pa. 144; Commonwealth v. Harris, 168 Pa. 628) and should have directed a verdict in their favor. The fifty-first, fifty-second and fifty-third assignments of error are sustained.

The second branch of the case involves the conviction of the five members of council. We have said that the judgment entered by the court below against these defendants must be affirmed. Some of the assignments of error require separate notice. Among them is the first, which goes to the refusal of the court below to sustain the defendants’ challenge to the array of jurors. The application was upon motion (to which was attached an affidavit of one of the defendants) founded upon the statements first, that the jury wheel was not filled in the manner provided bylaw; second, that the wheel was filled contrary to law, (a) because not filled from the body of the county; (J) because the names of persons who served as jurors during 1899, were illegally returned to the wheel to be drawn during 1900; (c) because certain jurymen were drawn and present in court at the trial who were drawn for the year 1899, and served during that year. The counsel also offered the venires for 1899 and 1900 for the inspection of the court.

The Act of April 10, 1867, P. L. 62, requires the president judge and jury commissioners to meet thirty days before the first term of the court of common pleas in every year, “ and thereupon to select alternately from the whole qualified electors of the county the number designated by the court, of sober, intelligent and judicious persons to serve as jurors in the several courts of the county during that year.” It is alleged that from the facts exhibited to the court, a violation of this act of assembly was shown. It is contended that by inspection of the venires it appeared that some eighty or more names were taken from the previous year and placed in a block in the wheel for the coming year. The appellants themselves say, however, that this is the only “ probable inference ” to be drawn from the venires. The question whether or not the jurors were properly drawn cannot be determined on a basis of such an inference. No proof was submitted showing that there was a transfer of the names from wheel to wheel in bulk. The statement of fact in the motion was attested by an affidavit on information and belief, but no attempt was made to definitely prove that there was a transfer of names in bulk, or any of the facts alleged in the motion. The learned trial judge was warranted, in the absence of satisfactory proof that the provisions of the act of assembly had not been complied with, in overruling the motion. See Campbell v. Commonwealth, 84 Pa. 195.

Under the second assignment of error the appellants urge that the trial judge committed error in refusing the petition of the defendants for an order upon the district attorney to furnish a bill of particulars. The indictment contained two counts, charging the defendants with conspiracy to cheat and defraud the borough of Shamokin. The counts are substantially the same, except that the first concludes as a common-law count, and the second, a violation of the act of assembly. It must be admitted that the indictment was general in its terms. It may be that had the learned trial judge been able to foresee the somewhat intricate facts presented by the huge bulk of the commonwealth’s testimony, he would, not only in aid of the defendants, but for the assistance of the court, have simplified the issues by directing a bill of particulars to be filed. It is possible, however, that this suggestion may have its birth in the labor in which this court has been involved in its review of the case. At all events, the matter of granting or refusing a bill of particulars lies within the sound discretion of the trial judge. The defendants were not entitled to demand the bill ás a matter of right. We are not prepared to say that the learned trial judge improperly exercised the discretion with which he was clothed. It does not appear that the defendants were surprised by any unexpected proof submitted by the commonwealth. It does appear by the petition for the bill that the defendants desired to know the “ specific matters which will be attempted to be proved against them.” The prayer of the petition is that the district attorney be directed to “ file a bill of particulars of matters they propose to prove in this case.” These requests were in effect for a specification of the evidence to be adduced by the commonwealth. This the prisoners had not the right to demand nor the court to require: Commonwealth v. Buccieri, 153 Pa. 547. The second assignment of error is dismissed.

The remaining numerous assignments raise comparatively few questions requiring special notice. These may be discussed without direct reference to the assignments by number. The .first is whether the evidence presented by the commonwealth warranted a submission to the jury of the question as to the' guilt of the five councilmen of .the crime of conspiracy charged. This question should involve a review of the evidence by us. But, as in the treatment of the first branch of the case, we will here restrict ourselves to an expression of opinion upon the facts, in order to save the discussion from degenerating into a mere grouping of excerpts from the testimony. The proof submitted by the commonwealth was in large part the testimony of three members of the borough council, Thompson, Phillips and Delaney. These men, inspired by the burgess, undertook to secure information of the wrongdoing of their associates in council. The five defendants, if the evidence is to be believed (and it is uncontradicted), distributed to the three witnesses money for the purpose of influencing their votes upon legislation in the borough council, affecting the awarding of contracts for paving. The evidence further shows that the five councilmen were all associated in the corrupt use of money for the purpose named. It was distributed by several of them to their fellows and to the witnesses. There is no doubt about the concert of action in this branch of the ease. The object was to pass such legislation in respect to the paving contracts as would be most profitable to the councilmen. Every one of the five had his part in the main purpose. All participated in the results. The source of the money is not absolutely proven, but there is little douht that it was the bidders on the contracts, or the purveyors of paving material. Whencesoever it came, the procuring of it and the use of it stamp the transaction on the part of the councilmen as a conspiracy, the purpose of which was to cheat and defraud the borough. Assuming that it does not appear that the contracts were awarded for a palpably excessive price or for inferior material, the fact remains that the five councilmen of the borough procured for themselves and associates sums of money which, if payable at all, should have gone into the borough treasury, or in relief of the borough in its payments under the contracts, and not into the pockets of the councilmen. Under these circumstances, who can throw serious doubt upon the propositions that there was among these five men a concert of action and that they were all engaged in the common purpose of cheating and defrauding the borough ? “ If the conspiracy be to commit a crime or an unlawful act, it' is easy to determine its indictable character. ... If the motives of the ■confederates be to oppress; the means they use unlawful; or the consequences to others injurious, then confederation will become a conspiracy.” Agnew, J., in Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 187.

We pass to the inquiry whether the court rightly permitted testimony to be given of declarations made by alleged co-conspirators. The rule has been held generally to be that the declarations of a conspirator are evidence against himself and are also evidence against his associates when they are made during the performance of the fraudulent transactions which constitute the crime charged, for they then form part of such transactions, but when not made during the progress or continuation of the fraudulent scheme, but afterwards, they are not evidence: Heine v. Commonwealth, 91 Pa. 145; Weil v. Cohn, 4 Pa. Superior Ct. 446.

As we understand the argument for the appellants, it does not attack the rule but asserts that (1) there was not sufficient proof of a conspiracy when the court permitted the introduction of the proof of declarations ; and that (2) some of the evidence admitted was of declarations made after the conspiracy was at an end. The question, whether or not a conspiracy has been proven is for the jury, but it is manifest from the statement of the rule relating to the admission of declarations, that there is some point to be reached in the trial at which the trial judge is called upon to decide whether sufficient proof of a conspiracy has been adduced to warrant the introduction of evidence of declarations of conspirators. All of the evidence in the cause cannot, in the nature of things, be introduced at the same time, nor can it be foreseen by the trial judge. Again, where many defendants are being tried, it becomes a difficult thing to determine whether a particular defendant has been, by preceding evidence, so connected with the alleged conspiracy as to warrant the admission of proof of his declarations. The proof of the conspiracy at the point in the trial when the declarations are sought to be introduced, need not be conclusive, but only slight, in order to permit the introduction. See McDowell v. Rissell, 37 Pa. 168. In a civil proceeding it has been held that a division of the profits of the fraudulent transaction is sufficient evidence of combination in the first instance to render admissible the declarations of one conspirator against the rest: Kimmell v. Geeting, 2 Grant, 125. See also Commonwealth v. O’Brien, 140 Pa. 555, and Donnelly v. Commonwealth, 6 W. N. C. 104. It has been held, and with some show of reason, that the fact that some of the acts and declarations of the conspirators were allowed to come in before proof was made of the conspiracy or of the defendants’ connection with it, is no ground of objection, since the matter is largely discretional with the trial judge: 4 Am. & Eng. Ency of Law (1st ed.), p. 634.

The learned judge of the court below steered a skilful course amid the complications incident to the case on trial. We believe that he made no mistake when he admitted the proof of .declarations, but even if when admitted, the proof of conspiracy was weak, before the conclusion of the trial there was abundant proof to support his ruling as to the declarations and to carry the case to the jury on the questions of conspiracy and of implication therein. Under these circumstances, the error, if it was error, was corrected: 6 Am. & Eng. Ency. of Law (2d ed.), p. 869. The appellants further complain that declarations, made after the completion of the transactions with which the conspiracy was connected, were admitted. We agree with the court below in holding that the transactions were not completed. The conspiracy involved the distribution not only of moneys wrongfully procured, but also of other moneys payable after the paving contracts were paid by the borough. Some of the latter had not yet been paid when the declarations admitted in evidence were made. It may be that in order to secure their payment further legislation would become necessary. The conspiracy was not ended to the extent of shutting off the evidence admitted of declarations of conspirators: McCaskey v. Graff, 23 Pa. 321; Lowe v. Dalrymple, 117 Pa. 564; Helser v. McGrath, 58 Pa. 458.

Many assignments of error are founded upon parts of the charge of the court. Eliminating those parts which permit the jury to find Dixey, Rothschild and Boas guilty of participating in the conspiracy, the charge was clear, easily intelligible and free from reversible error. The appellants contend that the instruction of the court permitting the jury to find any two or more of the defendants guilty, was erroneous. It is not alleged that as a general rule such instruction would be improper. It is urged that there were several contracts before the court in respect to which some or other of the parties were interested; that some of the defendants were interested in one contract, but not in others; that in effect several conspiracies were shown; and that under the charge some of the defendants might be convicted of conspiracy in one of several conspiracies. The argument is ingenious but specious. The charge makes it plain that the conspiracy to cheat and defraud was one, and that the wrong acts incidental to the several contracts were but parts of the main conspiracy to cheat and defraud. Under the instructions of the court we are not able to see that the verdict of the jury can be construed to be anything but conviction of participation in the one main conspiracy.

The evidence was ample to warrant the conviction of the councilmen of the conspiracy charged, and the language of the judge in condemnation of their conduct, complained of as being unjudicial, was justifiable. His remarks upon the weight to be given to the evidence of the commonwealth, in the absence of any evidence whatever submitted on, behalf of the defendants, was not reversible error, especially as they were coupled with the notice to the jury that the credibility of the witnesses was for them. It is permissible for a judge in his charge to express an opinion upon the facts, provided he does not encroach upon the province of the jury (Commonwealth v. Winkelman, 12 Pa. Superior Ct. 511. See also cases there collected), and he is permitted to carry this to the extent of a free expression of opinion on the weight and value of the evidence, since he is the best adviser the jury can have : Fredericks v. Northern Central R. R. Co., 157 Pa. 128; Leibig v. Steiner, 94 Pa. 466.

There are a number of subsidiary question sraised by the appellants, but none which we regard as of sufficient importance to require special notice.

We sustain the fifty-first, fifty-second and fifty-third assignments of error and direct that the defendants, W. B. Dixey, Maier Rothschild and H. L. Boas, be discharged. We dismiss the remaining assignments and direct that the record be remitted and that the sentence imposed by the court below upon the defendants, E. O. Zuern, T. A. Holl, O. J. Reed, W. A. Reppard and W. S. Zimmerman, be carried into effect.