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Work Legal tRecord this court, it is incumbent on the objector to

show that fact.

The sixth, seventh and eighth exceptions Vol. XXXI THURSDAY, MAY 2, 1918. No. 51

are refuted by the sworn facts which appear

in the viewers' report, which, without legal counsel, we presume they relate to the al- refutation, must be assumed by this court, leged inadequacy of the report, in specifying as true; In re Road in Strasburg Townparticularly the reasons upon which the ship, 15 D. R. 666. viewers based the conclusion or matters of fact which they reported, to wit: “1. The of the viewers is hereby confirmed.

Exceptions are dismissed and the report part of the road proposed to be vacated has become useless, inconvenient and burdensome.” "2. There is no occasion for a public Q. S. of

Lancaster Co. road between the termini set forth in the petition and order of court."

Com. v. KoEune. If those conclusions were all of the report, Criminal Law-False Pretense--Signature it might be deemed proper to recommit the report for further explanation; but the

to Written Instrumeni-New Trial_ viewers also describe their meeting, their

Question for Jury. advertisment, and the several adjournments

Where on the trial of a defendant charged and a public meeting held in the Court with false pretense it is shown that the defendant House at York, at which public hearing ap- falsely represented himself as the insurance adpeared, among others, "the full board of juster for the company in which the prosecutor, road supervisors of Carroll Township, * * who had sustained a fire loss, was insured, and

thereupon the defendant obtained the signature of petitioners by their counsel, Logan and the prosecutor to a contract employing the defendLogan Esqrs., and objectors by S. B. Meis ant to advise and assist in the insurance claim at enhelder, Esq., their counsel.” Testimony a fee of ten per cent of the amount of the adjustwas given by witnesses under oath, and the ment, the case is for the jury, notwithstanding

that the defendant proposed to render service conclusions are drawn from the personal for his compensation. view of the Board of viewers and their It was a question for the jury whether the false hearing of the testimony. We have none pretense in obtaining the signature was sufficient of that testimony before us, but the draft to deceive an ordinarily prudent man though the of the portion of the road which was passed prosecutor signed without reading the instrument,

which would have shown the falsity of the de. upon is annexed to the petition, and shows fendant's representations. the surroundings together with the course and distance of another public road which

Rule for new trial.
touches the same termini given in the petition. John d. Nauman and S. R. Zimmerman

We think under the decisions, the report for rule.
and petition, on which the viewers were ap-
pointed, are clear and intelligent enough to

John E. 11 alone and S. 1'. Ilosterman,
withstand the ist, 2nd and 3rd excep- | Assistant District Attorney, contra.
tions; West Donegal Township Road, 21
Pa. Super. Ct. 621; Drumore Township fendant was convicted on an indicement

July 7th, 1917. Hassler, J.— The deRoad, 49 P'a. Super. Ct. 193; Bristol, which charged that he did "unlawfully and Township Road, 49 Pa. Super. Ct. 549.

knowingly and designediy falsely pretend to The 4th exception is refuted by the draft the said E. W. Brown, whose personal propwhich is attached to the report showing a erty, located in the Imperial Hotel, Lancaspublic school house within close proximity ter, Pennsylvania, had been destroyed by fire to the premises of Lortie J. Nelson, who is and was insured by various insurance comthe only exceptant to the report.

panies, that he, the said P. Curtis KoEune, The 5th exception is without merit. The was the insurance adjuster sent up to adjust petition asking for the appointment of view the said E. W. Brown's fire loss, by color ers describes the road to be vacated as a' and means of which said false pretense and "public road," and the presumption is that pretenses, he, the said P. Curtis KoEune, it was a public road. If it is not such a did then and there unlawfully, knowingly road as is properly within the jurisdiction of and designedly obtain from the said E: W.

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Brown his signature to the attached con- was present at that time. He told the tract, with intent to cheat and defraud, &c." (prosecutor, not in the hearing of the defendThe contract to which the signature of the ant, that the defendant was not the Insursaid E. W. Brown was obtained, a copy of ance Company's adjuster, and the prosecutor which is attached to the indietment, is as thereupon refused to allow him to do any. follows:

thing further. The defendant then said, “To the Insurance Companies interested: “I have got your signature and you have to

"This is to certify that P. Curtis KoEune pay me anyhow.” On the same day S. R. Co., Inc., or its representative, is hereby re- Zimmerman, Esq., acting as attorney for the tained to advise and assist in the adjustment defendant, sent notices to the Insurance of the Insurance Claim arising in conse Company of the assignment, and also gave quence of Fire, Smoke and Water which it a copy of the same. Most of this testioccurred at 33-35 W. King Street, Lancas-imony is corroborated by several witnesses. ter, Pa., on 31st day of March, 1916, to The defendant denied this testimony as Stock - Fixtures - Building - Plant- Household to how he obtained the signature of the Furniture, and it is agreed to pay the said prosecutor to the contract, but as the jury P. Curtis KoEune Co., Inc., for such serv- evidently believed the Commonwealth's resices, fee of ten per cent. (10%) of the timony, it only remains for us, in disposing amount of adjustment and expenses, hereby of this rule for a new trial, to ascertain assigning to the P. Curtis KoEune Co., whether it is sufficient to sustain a convicInc., all moneys due or to become due from tion, the Insurance Companies interested to the

Four reasons for a new trial have been extent of said fee and advances. The fee filed. They raise but two questions, the of P. Curtis KoEune Co., Inc., shall be due first one of which is that there should have after proofs of loss are sworn to and no fee been no conviction because there is no evito be less than twenty-five dollars. "E. W. Brown (Seal)."

dence of any intention on the part of the

defendant to defraud the prosecutor, as he Witness: P. C. KoEune.

proposed to give service for the amount At the trial E. W. Brown, the prosecutor,

which he was to obtain from the prosecutor testified that a fire injured some of his prop

by reason of the contract. erty, consisting of furniture, &c., located in The intent to cheat and defraud is to be the linperial Hotel in this City, and that he inferred from the circumstances of each case ; was insured against any loss to it by fire, in 2 Wharton on Criminal Law, Sec. 1448. two policies of insurance issued by the Glens The acts of the prisoner after, as well as beFalls Fire Insurance Company.

fore obtaining the goods are evidence of his The fire occurred on March 31, 1916, intention to cheat and defraud; Com. v. about ten o'clock A. M. The defendant McCrossin, 2 Clark 6. The circumstances called upon him between two and three here are that the prosecutor sustained loss o'clock P. M., and again at five o'clock P. by fire, and had a claim for such loss againt M., of the same day. On his first visit he an insurance company. He does not appear said that "He was the adjuster for the In- to have wanted nor needed the service of surance Company, was sent there to adjust any one to adjust his loss. The defendant this loss by the insurance company that I l appears to have been of this opinion, else he had.” On his second visit he testifies as would have offered his services and barfollows: "He called to my wife and myself gained for their payment without pretendto come over, he wanted to get this thing ing to be what he was not. He evidently fixed up, the sooner it was fixed up the believed that he could not obtain the emsooner it was over. He told us then he was ployment and thus be benefited by the comthe adjuster for the Insurance Company I pensation he would receive if he told the was insured in, and he said 'sign your name prosecutor what his business was, so he here, and I will go ahead and adjust this falsely represented that he was the repreloss.'” It is proven also that the defendant sentative of the insurance company, thus was not an adjuster for the Insurance Com- obtaining the prosecutor's signature to a con pany, nor sent by it to adjust the loss.

tract for the payment of his services. It The next morning, April 1, 1916, the de- was certainly the intention of the defendant fendant again called upon the prosecutor. by his false representation to deceive the The local agent of the Insurance Company prosecutor into obligating himself to pay for

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services that he did not want or need. He Justice Gibson, that we have been able to
would, therefore, be cheating and defraud find.
ing the prosecutor of whatever amount was It is true in this case that the prosecutor
necessary to pay for such services. It was might have discovered that the representa-
clearly the intention of the defendant that tions made by the defendant were false if
the prosecutor should do this or he would he had read the paper which he signed, as
not have tied up the amount due to the that showed that he was not acting as repre-
prosecutor from the insurance companies by sentative of the Insurance Company but as
giving notice of and a copy of the assign- a representative of another company who
ment to it. We are of the opinion from made it a business of adjusting fire losses.
the circumstances that the defendant intend. We do not think it was necessary for him
ed to cheat and defraud the prosecutor, and to have read the paper which he signed.
that the jury were fully justified in find. The excitement in the place where the fire
ing by their verdict that such was the had been was such, and the understanding
fact.

of the average person as to matters relating
The second reason urged why a new trial to fire insurance is such, that when a man
should be gran: ed is that the false repre. represented himself to be the representative
sentations were not such as would deceive of the company, a prudent man would have
an ordinarily prudent man, and that there accepted that and acted just as the prose-
fore there should have been no conviction.cutor acted in this case, viz: signed the
Sec. III of the Act of 31 March, 1860, P. paper he was told to sign to enable the de-
L. 410, provides that “If any person shall fendant to proceed with his work of ad-
by any pretense obtain the signature of any justing the loss. Under the circumstances
person to any written instrument with in- in this case it was, in our opinion, a question
tent to cheat and defraud any person of the for the jury whether the false pretenses
sams, every such offender shall be guilty of were sufficient to deceive even an ordinarily
a misdemeanor, &c." It will be observed prudent man; 2 Wharton on Crim. Law,
that the act of assembly doe; not state that Sec. 1455, page 1654, and we submitted it
the pretense must be such as would deceive to them. We think the jury were justified
an ordinarily prudent man. It is sufficient in finding a verdict of guilty by the law and
if a person by a false pretense does obtain the testimony.
the signature with the intention to cheat and

We have read the case of Com. v. Getler, defraud. In Com. v. Burdick, 2 Pa. 16+, 19 C. C. 248, cited by the defendant, and Chief Justice Gibson takes this view of the while it does not agree with our conclusions Act of 1842 which is practically the same in

we are not convinced that they are erroneous. this particular as the Act under which this We, therefore, discharge the rule for a new indictment is drawn. He says, “But I think

trial.
it, at least, doubtful wherher a naked lie, by
which credit has been gained, would not, in
every case, be deemed within our statute,
which declares it a cheat to obtain money or

Haas' Case.
goods ‘hy any false pre'ense whatsoever.''
This case is followed by the Supreme Court Sheriff-Fees and Emolumentsl'ictualling
in Com. v. Henry, 22 Pa. 253, where the Prisoners-Petitions.
false pretense was that the defendant had a
warrant for the arrest of the prosecutor's

Duplicates of a petition, which had been sep

arately circulated to secure signatures, were atdaughter. It was decided that this was a tached to and filed with the original. Only one sufficient pretense under the Act, even of these, having seven signatures thereto, was though the prosecutor might have asked to

On a motion to dismiss the petition see the warrant and thus have discovered because it was not sworn to, Held, that the motion

must be dismissed. that there was none. In Com. v. Moore, 99 Pa. 570, it is decided that the rule as laid tition, or regarded separately, is entirely imma.

Whether all the papers are treated as one pedown by Justice Gibson is too broad in that terial, because any one of them duly sworn to, it could cover a false statement of something would be sufficient to sustain this proceeding, so that was to be performed in the future. far as the provisions of the Act of August 9, 1915,

P. L. 72, are concerned.
False pretense must be of an exiating fact.
This is the only modification, by an Ap-ceriain prisoners, without giving names of parties

Allegations in the petition of ill treatment of pellate Court, of the rule as stated by or nature of injuries, and not signed or sworn to

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Sworn to

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by any of the sufferers, are not sufficient grounds extent of the physical ill treatment suffered upon which to base an unusual proceeding.

by them. The affidavit to the petition is The court has no jurisdiction to inquire into or not made by a signer thereof, nor is it change the fees or emoluments of the sheriff fixed by Act of Assembly.

averred that the affiant has personal But the charges made against the sheriff in con

knowledge of the material facts set forth nection with victualling the prisoners are such therein. There is no allegation that the inas can be heard and determined by no one else i jured parties have sought or have been except the court, because the amount of the retused redress in the ordinary legal chansheriff's allowance is fixed by the court itself.

nel. There does not, therefore, seem to be Petition of taxpayers and citizens for an sufficient ground laid in this petition upon inquiry into fees and emoluments of the which to base an unusual proceeding like sheriff's office.

this in court. Motion to dismiss the petition.

The District Attorney is the proper officer

before whom to lay the facts, when no Geo. S. Love for motion.

private prosecutor desires to assume the reA. C. Wiest, contra.

sponsibility of bringing an information. If

the facts are sufficient to warrant the prose- April 18th, 1918. Wanner and Ross, cution, it will then be ordered and conducted JJ.-The petition filed in this case charges by the District Attorney, officially. There the Sheriff of York County with ill treat. does not, therefore, seem to be any necessity ment of prisoners in the county jail, with of the court intervening in these cases until furnishing them unfit and insufficient food, ordinary methods of procedure fail. and with procuring an excess've allowance in payment of the same, through fraud and But the charges made against the sheriff misrepresentation.

in connection with victualling the prison

ers are such as can be heard and determined The respondent denies said charges, and by no one else except the court, because the moves the Court to dismiss the proceedings amount of the sheriff's allowance is fixed by because the petition is not sworn to as re- the court itself. quired by the Act of August 9th, 1915, P. L. 72, which provides: "That a judge of All the other fees and emoluments of the any court of record shall not, in any matter, Isheriff's office are fixed by Act of Assembly case, hearing, or proceeding before him, re- and the court has no jurisdiction to inquire ceive or consider any petition, or paper in into or to change them. The allegations of the nature of a petition, alleging any matter this petition as to the amount of the sheriff's of fact, unless the petition or paper is duly official emoluments, and accumulations of verified as to such allegations."

money, and other similar financial matters,

outside of the item of victualling the prisonIt appears that the duplicates of the original petition containing precisely the same tinent or material to this inquiry. They

ers are, therefore, matters which are not percontents, which had been separately circu: should, therefore, be omitted from such lated for signatures, were all attached to and

testimony as may be hereafter taken in these filed with the original in court. One of these having seven signatures thereto, was duly sworn to before an alderman. Whether we treat all of them as one petition, there

DECREE. fore, or regard them as separate petitions, is entirely immaterial, because any one of them

The respondent's motion to dismiss this duly sworn to, would be sufficient to sustain petition is refused. The testimony to be this proceeding, so far as the provisions of taken in this proceeding shall be limited to the Act of 1915 are concerned.

the petitioner's charges that the food furn

ished to prisoners by the sheriff has been bad The complaint of violence and ill treat- in quality and insufficient in quantity, and ment of certain prisoners is not signed or that an excessive allowance for the same sworn to by any one who is alleged to have was procured by him by fraud and false suffered at the hands of the sheriff, or de representation. The testimony to be taken sires to institute a prosecution on that ac- in the form of depositions under the rules of count. Neither does it give the names of this court and submitted to the court at any of the injured parties or the nature or the hearing of the case.

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Dork Legal Record Act, as to such notice, shall be sufficient

No. 52

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grounds for an application to set aside whatVol. XXXI

ever proceedings may have been taken," &c., THURSDAY, MAY 9, 1918.

&c. Road in Hellam Township.

That a failure on the part of the peti

tioners to comply with the requirement of Road LawNotice to Supervisors-Bor. that act is fatal, has been settled by this ough Plan.

Court, in the case of Road in Paradise An exception was filed to the report of road Township, 19 York Legal Record, 121, viewers because "The supervisors of the township and by other courts: See Road in Clarion were not given notice as provided by law.” Borough and Clarion Township, 17 Dist. A further exception was filed on the ground Dist. Rep. 431.

Rep. 853; Franklin Township Road, 22 "that the road was not laid out with reference to the plot of the Borough, or to the general arrange

In regard to the 6th exception, the Act of menis, convenience or advantage of the Borough.” May 14th, 1915, entitled "An Act providing Held, to be fatal to the preceedings.

a system of government for boroughs, and No. 2, January Sessions, 1917.

revising, amending and consolidating the Exceptions to report of Viewers. law relating to Boroughs,” Chapter VI, Jno. A. Hoober for exceptions.

Artitle VI, Section 2, P. L. 347, provides,

that "Every jury appointed to view, lay out C. W. A. Rochow, contra.

any road, or part of a road in March 1oth, 1918. Ross, J.—Seven ex

any borough,

shall have ceptions were filed to the report of the reference to the town plot and to the general viewers. The fifth and sixth exceptions are

arrangement, convenience, and advantage of fatal to the report. They are as follows:

the borough, and shall set forth the facts "5. The survivors of the Township fully in their report.” This requirement were not given notice as provided by law."* has been totally neglected in the report. "6 The road was not laid out with ref

Even the plot or draft attached to the erence to the plot of Hallam borough, or to report gives no adequate description of the the general arrangements, convenience or borough lines. advantage of the Borough.'

Those two unexplained and undenied deAn inspection of the petition for the ap- linquencies in the report and the proceedings pointment of viewers shows that it was pre- of the viewers, render the proceedings so sented to the Court and viewers were defective that we must sustain the fifth and appointed, March 26th, 1917.

sixth exceptions filed to the report. The report shows that the viewers met,

The report and proceedings of the viewers were sworn and proceeded to the discharge in this case are set aside, at the costs of the of their duties on the 6th day of April, petitioners. 1917, at the time and place which had been designated in notices which were served Automobiles-Collision at Street Crossupon the road Supervisors of Hellam ing-Right of Way-Negligence.--It has Towaship on the 28th day of March, 1917. been laid down as a general rule that one

Two of the Supervisors of Hellam Town- reaching the intersection of a street first has ship have joined in the exceptions, and say the right of way, and in determining whether that no notice was given by the parties who he can safely cross he need not anticipate a made application to the Court for the ap- sudden violation of the law of the road by pointment of viewers to lay out the new an approaching driver. This is in line with road as is required by the Act of March 29, the doctrine repeatedly laid down by the 1905, P. L. 70, Sec. I.

Supreme Court, that a man is not required The Act referred to requires not only to guard against the unexpected negligence that such a notice must be given, but that a of another, but is at liberty to presume that copy of such written notice, properly attested, the other party will act in conformity with shall be filed among the records of the Court the law and his duty,---especially where that having cognizance of the matter, "and a party fails to give any signal capable of failure to comply with the provisions of this being understood as a warning that he in

tends to arrogate to himself the right of * The exception alleged that the supervisors of way.-Morgan v. Duchynski, (Berks C. P.) the township were not notified of the application for the appointment of viewers.

10 Berks County Law Journal 123.

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