Summary
In Com. v. Dunie, 172 Pa. Super. 444, 447, 94 A.2d 166, we said: "A conspiracy renewed by repetitions may be prosecuted, and indictment found, at any time within two years after the commission of the last offense, by charging the crime within the statutory period."
Summary of this case from Commonwealth v. Cohen et alOpinion
November 17, 1952.
January 20, 1953.
Criminal law — Conspiracy — Agreement to cheat and defraud — Statute of Limitations — Receiving stolen goods — Merger — Suspended sentence — Appellate review — Penal Code.
1. Under The Penal Code of June 24, 1939, P. L. 872 (which condemns a conspiracy to cheat and defraud a person of his money or other property), a conspiracy renewed by repetitions may be prosecuted, and indictment found, at any time within two years after the commission of the last offense, by charging the crime within the statutory period.
2. The agreement to cheat and defraud another person is not the end of the offense of conspiracy, and the Statute of Limitations does not begin to run until the conspiracy has ceased.
3. Commonwealth v. Kimmel, 172 Pa. Super. 76, and Commonwealth v. Miller, 172 Pa. Super. 82, Held controlling.
4. Commonwealth v. Corcoran, 78 Pa. Super. 430, Held controlling.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ. (GUNTHER, J., absent).
Appeals, Nos. 221 and 222, Oct. T., 1952, from judgments and sentences of Court of Quarter Sessions of Lancaster County, Dec. T., 1950, Nos. 41 and 42, and Sept. T., 1950, Nos. 229 and 230, in cases of Commonwealth of Pennsylvania v. Maurice L. Dunie and Frank E. Hauck and Same v. Maurice L. Dunie. Judgments and sentences affirmed.
Indictments charging defendant with conspiracy, larceny, fraudulent conversion and receiving stolen goods. Before WISSLER, J.
Verdicts of guilty on charges of conspiracy, fraudulent conversion and receiving stolen goods and not guilty as to charge of larceny; sentence suspended as to charge of fraudulent conversion and judgment of sentence entered on remaining verdict. Defendant appealed.
Charles W. Eaby, Jr., with him Charles W. Eaby, for appellant.
Paul A. Mueller, with him William C. Storb, First Assistant District Attorney, for appellee.
Argued November 17, 1952.
This appeal lies in the groove of Com. v. Kimmel, 172 Pa. Super. 76, 92 A.2d 247, and Com. v. Miller, 172 Pa. Super. 82, 92 A.2d 249, in which allocaturs were refused. Appellant, a junk dealer, purchased scrap materials from the Armstrong Cork Company and through a corrupt agreement with Frank E. Hauck, Armstrong's yard master, secured large quantities of materials without paying for them. With Hauck, he was indicted for conspiracy; Hauck pleaded guilty; and appellant was found guilty. On another indictment, he was charged with fraudulent conversion, larceny, and receiving; was convicted of fraudulent conversion and receiving; and acquitted of larceny. Sentence for fraudulent conversion was suspended; and for the conspiracy and receiving convictions he was given two consecutive jail sentences.
The facts, established by the jury's verdict, place appellant squarely within the Kimmel and Miller pattern. Pursuant to an agreement made in 1945, Hauck, in consideration of periodical money payments, systematically delivered more materials to appellant than he paid for. In his opinion denying a new trial Judge WISSLER explained the modus operandi: "The `light-weighting' of the Dunie trucks was accomplished by Hauck by increasing the tare or empty weight of the trucks, for example, from 8000 to 8300 pounds. Hauck would also give defendant the advantage by reducing the recorded weight of the materials being sold to Dunie by taking a couple of hundred pounds off the gross weight. . . . and, in addition, seven to ten of the Dunie trucks per month were allowed to leave the salvage yard of the Armstrong Cork Company without any weigh slips whatsoever." This practice continued until September 1950, and the indictments were found in December 1950.
Because the conspiracy was formed in 1945, appellant argues that the prosecution begun in 1950 was barred by the Statute of Limitations. The conspiracy indictment was drawn under The Penal Code of June 24, 1939, P. L. 872, 18 Pa.C.S.A. § 4302, which condemns a conspiracy "to cheat and defraud any person of his moneys, goods, chattels, or other property, . . ." and charged the commission of the offense within the two-year statutory period. The proof is that Hauck and appellant, from 1945 to September 1950, continuously engaged in criminal acts pursuant to their agreement. It was a continuing conspiracy which was not terminated until it was discovered in September 1950. The agreement to cheat and defraud another person is not the end of the offense and the statute does not begin to run until the conspiracy has ceased. Com. v. Donnelly, 40 Pa. Super. 116. A conspiracy renewed by repetitions may be prosecuted, and indictment found, at any time within two years after the commission of the last offense, by charging the crime within the statutory period. Com. v. Kirk, 141 Pa. Super. 123, 14 A.2d 914, affirmed 340 Pa. 346, 17 A.2d 195. Appellant was properly convicted for conspiracy.
Appellant's able counsel focused his oral argument upon the foregoing proposition but in his printed brief, evidently prepared before the Kimmel and Miller cases were decided, advances several additional contentions, most of which were negated in those cases. So far as they relate to the charge of larceny, of which appellant was acquitted, and to the charge of fraudulent conversion, for which sentence was suspended, they present no question for consideration on appeal. Com. ex rel. Holly v. Ashe, 368 Pa. 211, 82 A.2d 244, and the Kimmel and Miller cases, supra.
There is a vague suggestion in the brief that the crime of receiving was merged in the offense of conspiracy, but the court below, on the authority of Com. v. Corcoran Corcoran, 78 Pa. Super. 430, and related cases, properly overruled that contention. Sub silentio, the Kimmel and Miller cases followed the Corcoran doctrine. On the whole, the testimony is clearly sufficient to support the verdict, and reveals that the criminal scheme described by the trial judge was pursued by appellant and Hauck.
Judgments and sentences affirmed.