Commonwealth v. Leilb

76 Pa. Super. 413, 1921 Pa. Super. LEXIS 162

• Court: Superior Court of Pennsylvania
• Decided: April 18, 1921
• Docket: Appeals, Nos. 147, 296, 297 and 298
• Status: Published

Opinion

Opinion by

Keller, J.,

The principal questions raised by this appeal are: (1) Is a duplicate tax receipt, not containing the seal of the state treasurer, the subject of a charge of fraudulently making and signing a written instrument to the prejudice of another’s right, with intent to defraud? (2) May a verdict stand which acquits a defendant of fraudulently uttering a written instrument, and, at the same time, finds him guilty of having fraudulently made and signed it, where the only proof of such fraudulent making and signing within the county is found in the evidence of the uttering therein of such instrument?.

(1) The law does not require the seal of the state treasurer to be affixed to receipts for taxes issued by him. It provides: “No receipt for money paid into the state treasury shall be good or available in law, unless signed by the state treasurer, or by some person known to be in his employ, and for whom he is answerable”: Section 36 of Act of March 30,1811, 5 Sm. L. 228. The countersignature of the auditor general is required by Act of April 10, 1849, P. L. 631, section 8: “No receipt for money paid into the state treasury shall be good or available in law unless countersigned by the auditor general, to whom all receipts of money paid into the treasury shall be presented; the auditor general is hereby authorized and required to provide suitable books in which he shall enter, or cause to be entered, the amount and date of the receipts presented, and the names of the parties to whose credit the money was paid, and he shall then countersign the same with his official signature.” The auditor general may authorize an agent, for whom he is responsible, to countersign such receipts on his behalf, using such official form of signature as he may decide upon, the same as any other person may direct his name to be signed for him: Fitzpatrick v. Engard, 175 Pa. 393; and a receipt for taxes paid, signed by the state treasurer or his duly authorized employee and countersigned with the official signature of the auditor general by the person authorized by Mm to affix it, would be a valid acquittance of the money so paid.

A duplicate receipt is not a copy, as generally understood. It is an original paper intended to take the place of and have all the validity of an original. It is defined in Corpus Juris, Yol. 19, p. 836: “The double of anything; an original repeated; a counterpart; one of two originals of the same tenor; the exact repetition of an instrument having all the validity of an original.” “A duplicate is an original instrument just as much so as tbe original article of which it is a duplicate. A certified copy of a record of articles of association is not a duplicate of such articles”: Nelson v. Blakey, 54 Ind. 29. A duplicate is primary evidence, while a copy is secondary evidence. The Act of May 9, 1874, P. L. 126, section 4, relied on by the appellant is not in point. It provides: “The state treasurer shall procure a seal of office, and all copies, under the seal of the state treasurer, of accounts and documents appertaining to his office, shall be evidence in courts of law and elsewhere within this Commonwealth.” The purpose of this provision was to make certified copies of records in the state treasury admissible in evidence the same as the originals, so as to avoid the necessity of producing the original records in court. The original receipt is given to the party paying the taxes. It does not stay in the state treasury and is not a record of that department. The books evidencing such payment are records of the treasury and their contents may be proved by certified copies under the hand and seal of the state treasurer, instead of producing the original records, but if a party to whom a receipt is given loses it, he may secure a duplicate signed and countersigned "just as the first one and it is an original paper, just as valid as the receipt first issued and will be received in evidence without any proof of inability to produce the first receipt. In making a certified copy of a record in the treasury department, the signatures appearing on it, if any, would be written, typewritten or printed, just as the body of the document and the certificate alone would be signed and sealed by the state treasurer; but a duplicate is actually signed and countersigned by the persons authorized to sign and countersign on behalf of the state treasurer and auditor general respectively, and needs no certificate of its truth or correctness.

We are satisfied that a duplicate tax receipt is such a written instrument as may be fraudulently made and signed in violation of section 169 of the Criminal Code, and the trial judge would have been justified in so instructing the jury. The defendant was certainly not harmed by his action in leaving it to the jury to find whether it was such a written instrument as was contemplated by the act.

(2) Forgery and knowingly uttering a forged instrument are two distinct offenses: Com. v. Miller, 115 S. W. 234 (Ky.); State v. Blodgett, 121 N. W. 685 (Iowa); though they may be joined in one count if the forging and uttering were practically simultaneous and arose from the same act or transaction: Com. v. Hall, 23 Pa. Superior Ct. 104, An acquittal of forgery does not bar a prosecution for uttering the same forged instrument: Preston v. State, 48 S. W. 581 (Texas); nor does an acquittal of uttering a forged instrument preclude a subsequent prosecution for forging it: State v. Blodgett, supra; State v. Williams, 53 S. W. 424 (Mo.); Beyerline v. State, 45 N. E. 772 (Ind.). And any evidence introduced at the first trial which is relevant to the second prosecution may be offered and received on such trial; none of it is discredited, so as to bar its admission, or rendered incompetent, at the second trial, because of the defendant’s acquittal at the trial when it was first presented.

There was sufficient evidence, if believed, to warrant the jury in finding that the defendant had forged the duplicate state tax receipts referred to in the several indictments, in Philadelphia County. He was acting as the agent or representative of the Merchant and Evans Company in the settlement of its state taxes. The money for the taxes admittedly had been received by him and deposited in his individual bank account the day before the date the receipts purported to bear and was not actually applied to their payment for nearly four months thereafter. It is true defendant gave reasons for this delay but his credibility was for the jury. It was testified that defendant, about this time, had endeavored to obtain some original blank táx re-eeipts from tbe treasury department, and it was not disputed that be bad gotten a supply of duplicate blanks. His explanation accounting for them was likewise for tbe jury. Tbe duplicate tax receipts were unquestionably forged and fraudulent. A bandwriting expert testified that in bis opinion, tbe figures on tbe receipts and tbe countersignature on bebalf of tbe auditor general were made by tbe defendant and a witness familiar with defendant’s bandwriting testified to tbeir similarity. Tbe receipts were produced by tbe Merchant and Evans Company from tbeir office in Philadelphia, and Mr. Evans positively testified that they bad been banded to him by defendant in tbeir Philadelphia office and that defendant then explained that tbe originals bad been lost or mislaid, which accounted for tbe delay in tbeir delivery. Tbe defendant admitted being in Philadelphia immediately before and after tbe dates fixed by Mr. Evans. It was not denied that shortly before tbe time of delivery fixed by Mr. Evans, in response to a telegram from tbe company demanding tbe tax receipts defendant bad telegraphed: “Will be in Philadelphia Friday file papers Merchant Evans Co.” It was also testified by Mr. Evans, and be was corroborated by a distinguished member of tbe Philadelphia bar, that- after settlement for tbe taxes bad. actually been made tbe defendant demanded back tbe state tax receipts which be bad previously given tbe company, and excused bis actions on tbe ground that be bad been badly advised. It is true no witness testified be bad seen tbe defendant sign tbe receipts in Philadelphia — it is rare that such testimony is obtainable in a forgery case — but there was positive testimony that be bad uttered them there. Tbe weight of authority in this country is that in tbe absence of direct evidence as to where a forgery was actually done, proof of tbe uttering of tbe forged instrument is prima facie or presumptive evidence that tbe forgery was committed in tbe county where it was uttered: Bland v. People, 4 Ill. (3 Scammon) 364; State v. Yer-ger, 86 Mo. 33; Johnson v. State, 35 Ala. 370; State v. Forbes, 73 Atl. 929 (N. H.); Spencer v. Com., 2 Leigh (Va.) 751; Heard v. State, 48 S. E. 905 (Ga.). And this is the case, although, as here, the instrument purported on its face to have been executed elsewhere: State v. Morgan, 35 La. Ann. 293, 42 La. Rep. 191; and though the defendant, as in this case, lived in another county: State v. Poindexter, 23 W. Va. 805. The rule was stated by Mr. Justice Story in U. S. v. Britton, 2 Mason 464 (U. S. Cir. Ct. Mass. 1822) : “I take the rule of law to be that the place where an instrument is found or offered in a forged state affords prima facie evidence, or a presumption, that the instrument was forged there, unless that presumption is repelled by some other fact in the case.” The case of Com. v. Parmenter, 5 Pickering 279 (Mass.), holds the contrary, but that decision has been modified to some extent and explained in the later cases of Com. v. Talbot, 2 Allen 161, and Com. v. Costley, 118 Mass. 1. We prefer to follow the rule generally in force, as above stated, rather than the Parmenter case.

The fact that the receipts purport to be signed on behalf of the state treasurer and auditor general in Dauphin County is no more persuasive that they were forged there than the fact that a forged note purports to be dated more than five years ago is proof that it was made at the time of its purported date and is, therefore, barred by the statute of limitations: Com. v. Hall, 24 Pa. Superior Ct. 558, p. 560.

But defendant contends that as he was acquitted on the second count, the evidence as to where the receipts were delivered to the Merchant and Evans Company cannot be considered in reference to the first count. We do not so hold. The jury did not find that Mr. Evans’s testimony, in that respect, was false or unworthy of belief; they simply found that the defendant did not unlawfully and fraudulently utter and publish the several receipts as true as laid in the indictment, knowing them to be fraudulent, to the prejudice of the Merchant and Evans Company and the Commonwealth of Pennsylvania and with intent to defraud. We do not know just what caused or influenced their verdict, but we are not justified in throwing out of the case as unworthy of belief any relevant and competent testimony in it. Had the defendant been tried for forgery alone on this testimony and been convicted, and subsequently been tried for uttering the forgery on the same testimony and been acquitted, his former conviction would not have been affected thereby. Nor if he had been first tried on the charge of uttering, and acquitted, would it have prevented Ms being tried for forgery and the same testimony being used to secure his conviction on the later charge. The effect is not altered by the fact that the conviction on the first count and the acquittal on the second were handed down simultaneously in the same verdict.

In Com. v. Hall, 23 Pa. Superior Ct. 104, and 24 Pa. Superior Ct. 558, where both offenses were joined in one count, and it was ruled that there could not be a general conviction on the indictment unless the two offenses were committed in one and the same transaction, the only proof of the forgery in the county where the venue was laid was evidence of the uttering there and the defendant was convicted only of the forgery and his conviction was sustained.

In like manner, a man may be acquitted of receiving stolen goods and subsequently convicted of larceny when the only incriminating evidence in the case is his possession of the stolen article, or he may be acquitted of larceny and subsequently convicted of receiving stolen goods, on the same evidence; in either case the acquittal does not render relevant and competent evidence in the second case incompetent and inadmissible because it was received in the first case and failed to secure a conviction.

We are of opinion that there was relevant and competent evidence in the case, sufficient if believed by the jury, to warrant the defendant’s conviction of forgery as charged in the indictment and we are not justified in setting aside their verdict because the same evidence failed to secure a conviction on the charge of uttering also.

The defendant also complains that in his charge to the jury the trial judge laid too much stress on the defendant’s misappropriation of the money sent him to settle the taxes, and that the jury may have been misled into thinking that that was “the offense” of which they might find defendant guilty. We do not think so. The trial judge clearly and distinctly defined the offenses for which defendant was being tried, stated the constituents of each charge, and told the jury what they must find in order to convict the defendant of that charge. His reference to the misappropriation of the money was only in connection with the necessity for showing the intent to defraud and that the forgery was to the prejudice of another’s right, and his use of the word “offense” was clearly in connection with the immediately preceding words, relating to the charge of fraudulently and unlawfully making and signing the receipts, upon which subject he was then addressing the jury.

The remaining assignments of error need not be referred to at length. The various questions raised by them were all disposed of satisfactorily in the opinion of the learned court below refusing a new trial, which will be printed in full in the report of this case.

The judgment is affirmed and the record remitted to the court below, and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.

Linn, J., concurs in the judgment.