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COMMONWEALTH v. HILBERT (11/11/59)

November 11, 1959

COMMONWEALTH
v.
HILBERT, APPELLANT.



Appeals, Nos. 403 and 404, Oct. T., 1959, from judgments of Court of Quarter Sessions of Lehigh County, Sept. T., 1958, Nos. 128 and 129, in case of Commonwealth v. Robert S. Hilbert. Judgments affirmed.

COUNSEL

David Freeman, with him Harry P. Creveling, for appellant.

Paul A. McGinley, District Attorney, for appellee.

Before Gunther, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., and Hirt and Wright, JJ., absent).

Author: Gunther

[ 190 Pa. Super. Page 604]

OPINION BY GUNTHER, J.

Robert S. Hilbert was tried in Lehigh County on two bills of indictment as follows: No. 128 September Sessions, 1958 charged larceny by an employe and fraudulent conversion, and No. 129 September Sessions, 1958 charged embezzlement. After several days of trial, verdicts of guilty on all counts were returned by the jury. Motions for new trial and in arrest of judgment were filed and overruled and on July 7, 1959, he was sentenced to a term of one year imprisonment on each bill of indictment, sentences to run concurrently. From these judgments, defendant has appealed.

Defendant was financial secretary and treasurer of Local No. 1174 of the International Hod Carriers, Builders and Common Laborers Union of America. As a result of the audit of his books, it was discovered that certain shortages occurred in his accounts which could not be explained away. As a result, defendant was relieved of his office in May, 1958, and criminal informations were lodged against him. Robert L. Leonard, a certified public accountant, detailed the methods used by his accounting firm in arriving at the shortages for the period from January 1, 1958 to March 31, 1958.*fn1 Bank statements showing the balance on

[ 190 Pa. Super. Page 605]

January 1, 1958 and on March 31, 1958 were admitted into evidence. In addition to the bank statements, the certified public accountant wrote directly to the bank and asked and received confirmation as to the amount of credit the union had in the bank on the dates in question. Allowances were made for outstanding checks and cash found in defendant's cash box but the audit still disclosed a shortage of $2,177.21 for the period in question.

On this appeal, defendant contends (1) that the evidence was insufficient to convict him of the crime charged; (2) that the charge of the court below on reasonable doubt was erroneous as a matter of law; (3) that the refusal to grant a bill of particulars was prejudicial and an abuse of discretion, and (4) that his constitutional rights were violated in that he was not given a bill of particulars and no opportunity was given to examine the union's books to determine the accuracy of the auditor's reports before trial. We shall consider these objections in the order raised.

(1) In Commonwealth v. McSorley, 189 Pa. Superior Ct. 223, 150 A.2d 570, we have stated that the Act of June 15, 1951, P.L. 585, 19 P.S. section 871, imposes upon the court the duty to consider the entire record to determine whether there is sufficient evidence to establish the guilt of the defendant. As we view this record, we are satisfied that the evidence presented and believed by the jury was sufficient to sustain the verdicts. The bank balances on the respective dates in question, compared with the books under the control of the defendant, clearly disclosed a substantial shortage. The cash box, in which monies were kept until deposited, were in the exclusive ...


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