Appeals, Nos. 179 and 180, Oct. T., 1956, from judgment and sentence of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of Delaware County, Sept. T., 1955, Nos. 534 and 535, in case of Commonwealth of Pennsylvania v. Henry Heintz. Judgment of sentence affirmed; appeal from suspended sentence quashed.
C. Norwood Wherry, with him Holl, Tayloe & Holl, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, with him Raymond R. Start, District Attorney, and J. Harold Hughes, First Assistant District Attorney, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 182 Pa. Super. Page 333]
Henry Heintz was convicted by a jury of cheating by false pretense and of fraudulent conversion. The court suspended sentence on the charge of fraudulent conversion but sentenced the defendant to the penitentiary on the charge of cheating by false pretense.
The defendant had been previously convicted and a new trial granted by the court below. At the second trial the defendant was not represented by counsel, but after he was found guilty, the court appointed counsel who made motions for a new trial and in arrest of judgment. The court below dismissed the motions, and the defendant has appealed to this Court.
The defendant was engaged in the heating and oil burner business in Chester. From the evidence the jury could properly find that on July 29, 1954, he obtained $200 from Mrs. Albina Aperio upon his promise to purchase heating plant equipment for installation in the house which she and her husband had purchased shortly before that time. On September 9, 1954, the defendant told Mrs. Alperio that he had spent the $200 for the purchase of the heating equipment for her home, but needed $200 more to purchase additional equipment. Although he dismantled and removed the old furnace, which was in the house, he never delivered any heating equipment except an oil tank valued at approximately $40.
[ 182 Pa. Super. Page 334]
The evidence showed that after the defendant's arrest he gave the magistrate the names of merchants with whom he said he had spent the first $200 for heating equipment, but these merchants testified that they had not made these sales to the defendant. From this and other evidence the jury could well conclude that the defendant misrepresented an existing fact, to wit, that he had heating equipment which he had purchased for Mrs. Alperio with her $200, when in fact he did not have such equipment.
The Criminal Code of June 24, 1939, P.L. 872, § 836, as amended, 18 PS § 4836, provides that "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 ..."
In a strict interpretation of the same language contained in Section 111 of the Act of March 31, 1860, P.L. 382, this Court held in Com. v. Mauk, 79 Pa. Superior Ct. 153 (1922) that the "false ...