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COMMONWEALTH v. THOMAS (01/12/50)

January 12, 1950

COMMONWEALTH
v.
THOMAS



COUNSEL

Raymond P. Shafer, Meadville, for appellant.

F. Joseph Thomas, Meadville submitted for appellee.

Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.

Author: Ross

[ 166 Pa. Super. Page 215]

ROSS, Judge.

In this criminal case the Commonwealth has appealed from the sustaining of defendant's demurrer to the evidence produced at a trial on an indictment for cheating by fraudulent pretense.

On January 10, 1939, the defendant, then a resident of Erie County, applied for public assistance from the Erie County Board of Assistance of the Commonwealth of Pennsylvania, on a signed and sworn application, and as a result of the application was granted assistance for herself and five children. In July 1942 she moved to Crawford County and in order to have her assistance continued in that county, executed on August 13, 1942 a 'supplement' to her original application, and on August 27, 1947 she signed another 'supplement to an original application' and executed in connection therewith an affidavit. She was employed by one Kessler from October 1, 1945 until June 22, 1948, during which time she was paid approximately $2,500.00 in wages. During that period of time she received $3,740.80 in assistance but had she reported her employment she would have received only $1,473.50. This prosecution resulted from the defendant's employment by Kessler and the receipt

[ 166 Pa. Super. Page 216]

    of wages from him, she being indicted for receiving $2,267.30 by fraudulent pretense.

The indictment was drawn under Section 836 of the Act of June 24, 1939 (the Penal Code), P.L. 872, 18 P.S. ยง 4836 as amended, which provides in part: 'Whoever, by any false pretense * * * obtains from any other person any chattel, money, or valuable security, with intent to cheat and defraud any person of the same, * * * is guilty of a felony'. 'A criminal false pretense has been said to be 'the false representation of an existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does, in fact, deceive, and by means of which one person obtains value from another without compensation': Com. v. Goldberg et al., 130 Pa. Super. 252, 260, 196 A. 538, 542. In order to bring a case within the statute, the following elements must co-exist: (1) a false pretense; (2) an obtaining of property or something of value thereby; (3) an intent to defraud.' Com. v. Gross, 161 Pa. Super. 613, 618, 56 A.2d 303, 306.

In determining whether the learned court below erred in sustaining the defendant's demurrer, we are concerned solely with the question whether the Commonwealth produced any evidence of a 'false representation of an existing fact'. There is no evidence of such misrepresentation 'by oral * * * words or conduct', and if there is one by 'written words' it must be based upon the original application for relief executed on January 10, 1939. In connection with the application the defendant executed an affidavit which averred 'that the statements in this application are true and correct and complete. That no facts which should have been contained therein have been omitted * * *' As part of her 'supplement to an original application' of August 27, 1947, the defendant executed in connection therewith an affidavit averring 'that the statements made by

[ 166 Pa. Super. Page 217]

* * * her in * * * her last application for assistance dated [blank] were true and correct, and that no facts which should have been contained therein were omitted as of that date, that the statements made are still true and correct, and that there is no change in any of the facts contained in the application except as follows:' (The exceptions are not material in this case.) The question arises: Were the statements and the facts set forth in the ...


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