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COMMONWEALTH v. EMMEL (03/22/61)

March 22, 1961

COMMONWEALTH
v.
EMMEL, APPELLANT.



Appeal, No. 363, Oct. T., 1960, from judgment of sentence of Court of Quarter Sessions of Berks County, Dec. T., 1958, No. 104, in case of Commonwealth of Pennsylvania v. Melvin Emmel. Judgment of sentence affirmed.

COUNSEL

Edward Youngerman, with him Alan I. Baskin, for appellant.

Peter F. Cianci, Assistant District Attorney, with him Frederick O. Brubaker, District Attorney, for appellee.

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

Author: Montgomery

[ 194 Pa. Super. Page 443]

OPINION BY MONTGOMERY, J.

Appellant, Melvin Emmel, filed this appeal from his conviction and sentence on a charge of cheating by fraudulent pretenses at No. 104 December Sessions, 1958, in the Court of Quarter Sessions of the Peace of Berks County. Subsequent to the verdict of guilty returned by a jury, he filed motions in arrest of judgment, for new trial and to quash the indictment. These motions were denied and he was sentenced to pay a fine of $100.00 to the Commonwealth for the use of the County of Berks, costs of prosecution and to undergo an imprisonment in the Berks County Prison for a period of not less than six months nor more than 23 months. The refusal of his motions are assigned as error.

The evidence of the Commonwealth disclosed that appellant was the proprietor of an electrical appliance store, trading as Emmel Appliance, in the City of Reading. On December 31, 1957, appellant sold to Harry Wolf and Ethel G. Wolf, his wife, a television set and a washer on an installment sales contract. The blanks on this contract were not filled in except for the names of the purchasers. Several days later, appellant went to the home of the purchasers and induced them to sign another contract, also in blank, on the pretext that the first contract was not accepted by the lending institution with whom he attempted to discount it, the Reading Wimsett Thrift Company, and stated that another contract had to be signed in order to finance the sale through another lending institution.

The evidence further disclosed that the original contract had been assigned, in fact, to the Wimsett Company by appellant and that he received $391.00 for said assignment. This contract, however, stated that a Norge refrigerator was sold to Mr. and Mrs. Wolf, and it was on this false representation, signed

[ 194 Pa. Super. Page 444]

    by appellant and stating that the merchandise described therein was in fact sold to the purchasers, that Wimsett Company relied in purchasing the contract. This contract was worthless and uncollectible against the alleged purchasers since they had not purchased a Norge refrigerator.

During the course of the trial, the Commonwealth had difficulty in making out a case on the testimony of the witnesses whose names had been endorsed on the indictment, and three additional witnesses were called and testified whose names did not appear thereon. As to two of these witnesses, appellant objected solely on the ground that their names had not been endorsed on the indictment. These two witnesses established that appellant had personally handled this transaction with the lending institution and actually received the proceeds of the assignment and deposited the same in his bank account. No plea of surprise was made, and appellant offered no testimony in his behalf.

The motions in arrest of judgment, for a new trial and to quash the indictment are predicated principally on the propriety of allowing witnesses to testify at the trial when their names were not endorsed on the indictment. It is contended that, without this additional testimony, the evidence was insufficient to sustain a verdict of guilty and that because appellant had no advance notice of such witnesses and their testimony, a new trial should be granted. Also, it is contended that the indictment was returned without ...


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