Commonwealth v. Wallace

Mr. Justice Trunkey

delivered the opinion of the court,

It is contended by the defendant that the Commonwealth is not entitled to a writ of error, or certiorari in this case. Reference is made to Commonwealth v. Moore 99 Pa. St., 570, where one of the judges was of opinion that the writ should be quashed; the court, however, sustained the writ and affirmed the judgment. 0

The Criminal Procedure Act of 1860, § 33, provides that any person indicted, may remove the proceedings therein into the Supreme Court, provided that said court, or one of the judges thereof, or the attorney general, allows the writ upon sufficient cause. Other sections provide for bills of exceptions by defendants, and allowance of writs of error on their application, in cases of felonious homicide. The Act of May 19th, 1874, provides that in the trial of all criminal cases, the defendant may except to any decision of the court, in the same manner as is provided and practiced in civil cases, and in case of nuisance, or forcible entry, or detainer, the Commonwealth also may except to any decision in like manner; and in cases exclusively triable in the courts of Oyer and Terminer and general jail delivery, “the accused, after conviction and sentence, may remove the indictment, record, and all proceedings into the Supreme Court,” and in all other cases “ writs of error and certiorari may be issued to all criminal courts, when specially allowed by the Supreme Court or any judge thereof.”

A view of the statutes reveals the purpose to secure to defendants, or accused persons, the right of removal and review ; not to take away any right from the Commonwealth. For reasons patent to every one familiar with the character of cases of nuisance, forcible entry, and detainer, the Commonwealth, as well as the defendant, is clothed with right to except to decisions of the trial court; but that grant takes away no power as respects other cases. Since the Act of 1860, it has been decided that the powers of this court are competent to the review of any judicial record, when no statutory restraints have been imposed, and that the district attorney may take out a writ of error or certiorari without special allowance: Commonwealth v. Capp, 48 Pa. St., 53. In the conduct of criminal cases, the district attorney in each county is vested with all the powers which formerly belonged to the deputy attorney general: Gilroy v. Commonwealth, 105 Pa. St., 484. To erroneous decisions made in the trial which may cause the acquittal of the accused, except in the three misdemeanors already mentioned, the Commonwealth cannot except, and such decisions cannot be reviewed. But for error in quashing an indictment, arresting judgment after verdict of guilty, and the like, the Commonwealth may remove the record for review without special allowance of the proper writ.

The defendant further contends that if any writ can be taken it is a writ of error and not a certiorari. It cannot be gainsaid that it is bad practice to take a certiorari in a case like the present, although in fact it brings up the record as would a writ of error. It is conceded that either writ lias been used, sometimes one and sometimes the other, for the same purpose. This court, where the cause has'been prepared and heard on its merits, has considered it as if brought up by writ of error, as in the late case of Commonwealth v. Moore, supra. Were this writ quashed the Commonwealth could immediately take out the proper writ; and, as the case has been fully heard on the merits, it seems better that the real question be determined.

The indictment charges that the defendant did pretend “ that the assets of said People’s Savings Bank were largely in excess of its debts and liabilities, and that said bank was perfectly solvent and able to pay all its debts and liabilities.” Was this a pretence within the statute ? Persons in the transaction of business understand that a solvent man is able to pay his debts. The phrase respecting the large excess of assets over habilites, and the statement that the bank was able to pay all its debts, emphasized the representation that it was solvent. It may be that when a man buys goods on credit, or borrows money, by such act he represents himself to the creditor as solvent, but it is not so understood by persons in business. If the debtor says nothing as' to his solvency or property, the creditor does not understand that he represents anything. A note or other obligation for the payment of money, by usage, does not mean a pretence of ability to pay; but the giving of a bank check by usage is a pretence that there is money in the bank subject to the check. Acts may amount to a pretence as well as words.

In State v. Tomlin, 5 Dutcher, 13, the pretence by the defendant to the prosecutor was, that a third person was insolvent, largely indebted, possessed of small means, and unable to pay his debts in full. It was held that the pretence was matter of fact, not mere opinion, and the indictment was sustained. The word “ insolvent ” signified that the third person was unable to pay, but the added phrases gave emphasis to the representation. It maybe more difficult to establish to to the satisfaction of a jury that a false representation pf solvency, without more, was made with fraudulent intent, or that it induced the prosecutor to part with his property, than it would be were such representation accompanied by a detailed false statement of the property and liabilities of the person represented as solvent. This being so, it is not for the court to say that a positive statement of the fact of solvency is only the expression of an opinion.

The indictment avers that “in truth and in fact the assets at the time of making the representation aforesaid, were not in excess of its debts and liabilities, and said People’s Savings Bank was not solvent and able to pay all its debts and liabilities.” That seems a sufficient negative of the pretended facts.

The remaining objection to the indictment is, as alleged in the reasons for quashing it, that it charges that the money was obtained by both a pretence and a promise, and so far as the court can know, the promise alone may have induced the prosecutor to part with his money.

The defendant concedes that if the indictment had charged the pretence alone, admitting its sufficiency, the proof would, have been sufficient, even though it showed that the deposit was partly induced by the promise. Nor is it claimed that, should the defendant be convicted on this indictment, the court would arrest the judgment because the promise is set out therein. It is settled that when a pretence and promise are made together, and both operate in the inducement, the case is within the statute, if the pretence of a false existing or past fact be sufficient. Indeed, when they are blended, it may be difficult to prove one without the other; and equally difficult to fairly state the pretence without the accompanying promise, in the indictment. Both may be proved, and the jury determine whether the prosecutor would have parted with his property without the pretence. If the grand jury act intelligently, they would no more likely find a true bill on the promise alone, than the petit jury would a verdict of guilty. They hear the testimony of the blended pretence and promise, and that both are in the indictment can work no prejudice to the defendant.

In State v. Dowe, 27 Iowa, 273, the defendant demurred to the indictment, and the demurrer was overruled, the court remarking, “ The fact that a promise is combined with a false pretence does not take away the crimimal character of the act.” That ease is meagrely reported, yet it seems the indictment, setting forth pretence and promise, was sustained. The case of Reg. v. West, 8 Cox’s C. C., 12, is when the pretence was blended with a promise, and it appears both were alleged in the indictment, but no question was raised as to the practice.

We are not convinced that the indictment is fatalty defective, and, therefore, are bound to say that the order quashing it is erroneous: Com. v. Church, 1 Pa. St., 105.

Judgment reversed, and procedendo awarded. Record remitted.