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COMMONWEALTH v. STONE (09/11/58)

September 11, 1958

COMMONWEALTH
v.
STONE, APPELLANT.



Appeal, No. 64, March T., 1958, from judgment of Court of Quarter Sessions of Dauphin County, March T., 1957, No. 104, in case of Commonwealth of Pennsylvania v. Stanley Stuart Stone. Judgment, as modified, affirmed.

COUNSEL

G. Thomas Miller, with him Bailey and Rupp, for appellant.

Martin H. Lock, Assistant District Attorney, with him Huette F. Dowling, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 187 Pa. Super. Page 238]

OPINION BY ERVIN, J.

This is an appeal from a judgment of sentence after a trial by a judge without a jury, on a charge of cheating by fraudulent pretenses.

The evidence must be considered by us in the light most favorable to the Commonwealth: Com. v. Mitchell, 181 Pa. Superior Ct. 225, 227, 124 A.2d 407.

In January 1956 the defendant approached E.F. Garno and represented to him that he had a large order for electric shavers from Shillito's, a leading department store in Cincinnati, Ohio, but that he did not have sufficient money to finance the deal and requested Garno to finance it on a profit splitting basis. These representations were false but were relied upon by Garno, who advanced the sum of $39,450.00 to the defendant. This transaction in January 1956 was the original "Shillito" transaction. On February 28, 1956 the defendant gave Garno a demand note for the principal sum of $42,836.00. This was to cover the $39,450.00 which Garno had advanced to defendant and also $3,380.00 as Garno's share of the profits from the alleged January deal. On April 5, 1956 defendant again approached Garno for another loan. This time, however, Garno insisted upon some additional assurance that there was an order from Shillito to the defendant for razors. Defendant then gave Garno a paper marked "Inter Office Communication" which purported to contain the details of the Shillito order and defendant endorsed thereon a pledge to Garno of the invoice dated 4/5/57 for the loan. About 30 or 40 days prior thereto defendant had given to Garno a pink slip of paper on

[ 187 Pa. Super. Page 239]

    which was printed the name "Shillito's" and which was supposed to be an order from Shillito Department Store to Empire Sales Company, a company controlled by the defendant, to convince Garno that the defendant actually was dealing with Shillito's store in Cincinnati. On April 5, 1956, relying upon defendant's false representations, Garno surrendered to the defendant the latter's note of February 28, 1956 and accepted from him a new demand note for $43,196.00. Presumably a portion of this amount represented principal and a portion profits on the prior Shillito deal or deals. Corporal Smith of the Penna. State Police testified that he showed the pink slip to defendant and that defendant admitted that he had that form made up; that the signature of the alleged purchasing agent had been placed thereon by him (the defendant); and that he had exhibited the alleged order to Garno for the purpose of obtaining money from him. The defendant also admitted that he had no business dealings with Shillito in 1956; that he obtained $39,450.00 from Garno in January of 1956; that 30 or 40 days prior to April 5, 1956 he gave Garno the pink slip of paper purporting to be an order from Shillito and that the name of Shillito was falsely printed thereon; and that on April 5, 1956 he gave Garno the inter-office communication on which the defendant endorsed his pledge.

Section 836 of The Penal Code, 18 PS ยง 4836, provides: "Whoever, by any false pretense, obtains the signature of any person to any written instrument, or obtains from any other person any chattel, money, or valuable security, with intent to cheat and defraud any person of the same, or being an officer, manager, agent, employe of or in any way interested in any person, by false pretense, knowingly and with intent to defraud, ...


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