Appeal, No. 31, March T., 1955, from judgment of Court of Quarter Sessions of Dauphin County, June T., 1953, No. 66, in case of Commonwealth of Pennsylvania v. Vernon E. Hancock. Judgment affirmed.
Nicholas J. D'Alessandro, with him Henry A. Torchia, for appellant.
H. F. Dowling, District Attorney, with him Richard D. Walker, Assistant District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 177 Pa. Super. Page 587]
The indictment in this case charged that the defendant by false pretense did "unlawfully and feloniously obtain from... Eston Klinger & Son Lumber Co., a certain amount of lumber of the value of $3,747.88... with intent to cheat and defraud..." The indictment charges a felony under § 836 of The Penal Code of June 24, 1939, P.L. 872, as amended, 18 PS § 4836. Following defendant's conviction his motions
[ 177 Pa. Super. Page 588]
for a new trial and in arrest of judgment were denied and sentence was imposed.
It is established by the testimony that defendant on June 4, 1951, came to the place of business of Eston Klinger and Son Lumber Company near Elizabethville in Dauphin County and there talked with E. Leroy Klinger, the president of the company. He stated that he had made a contract to build a garage or service station with apartments on the second floor for "a party at Fountain Springs" near Ashland in Schuylkill County, Pennsylvania, and that he needed a large quantity of lumber for the job. He said that he wanted all of the lumber delivered at one time so that he could have the building in an advanced stage of construction within 30 days when he would be entitled to receive a substantial payment on his building contract. To induce the Klinger Lumber Company to sell the lumber to him on credit he represented that the payment would be turned over to the company to pay for the lumber in full, and that it would be adequate in amount for the purpose. On these representations, although relying also on the company's right to file a mechanic's lien, Klinger agreed that the company would supply the lumber and would extend credit for payment within 30 days. When defendant produced a list of the lumber that would be required, he was advised that the company did not have all of it in stock but would acquire the unstocked items from other dealers for delivery to the defendant. On the acceptance of his order, the defendant stated that he was living with "the party" for whom he was constructing the building and that he, the defendant, could be reached there by calling telephone number Ashland 730. Three days later, the defendant called Klinger and asked that delivery of the lumber be made as soon as possible. On June 12, 1951 Klinger telephoned Ashland 730 intending
[ 177 Pa. Super. Page 589]
to talk with the defendant. The man who answered the call identified himself as Lamont Miller and he told Klinger that he was the party with whom Hancock had a contract to erect a building.
The first delivery of lumber was made on June 15, 1951, in accordance with defendant's instructions, on the land of Lamont Miller in Fountain Springs who was present when delivery was made. E. R. Klinger, vice-president of the lumber company accompanied the load to the Miller lot. The defendant arrived on the scene soon thereafter; the size of certain windows was discussed and defendant again urged that the balance of the lumber be delivered to the Miller lot so that construction could be completed without delay. On June 22, 1951 Lamont Miller accepted delivery of a load of lumber on his land and receipted for it in the name of Hancock. Window frames subsequently delivered to the premises were placed in Miller's garage at his request. On June 25, at the time of the last delivery, defendant made a number of excuses for his delay in starting construction. Lamont Miller had stated to E. R. Klinger at the time of the first delivery that he would pay for the lumber if Hancock didn't "because he was putting up this building and wanted to have it free and clear." E. R. Klinger testified also that Miller on July 14 told him that Hancock would start the building on the following Monday and that Miller again said: "If he didn't pay for it, I will." On July 18th E. R. Klinger went to Ashland and then found that all of the ...