11 Pa. Super. 164 | Pa. Super. Ct. | 1899
Opinion by
The first, third and fourth counts need not be considered, as the defendant did not plead guilty to any one. of them, nor was any trial and conviction had upon them. ' Whether' these counts are good or bad is immaterial, for if there was one count good and sufficient to support the conviction and judgment the others need not be considered: Com. v. McKisson, 8 S. & R. 420; Hazen v. Com., 23 Pa. 355; Hutchison v. Com., 82 Pa. 472.
The second count charged the defendant with having collected county taxes of a certain borough “ to the amount of $ and did then and there ” fraudulently convert and appropriate a part thereof to his own use and fail to pay over the same or a part thereof to the person legally authorized to demand and receive the same. The count is almost literally in the language of the 1st section of the Act of June 3, 1885, P. L. 72. To this count the defendant pleaded guilty. Five days afterwards he moved hi arrest of judgment because the count did not specify the amount alleged to have been embezzled, nor the amount collected from any particular person, which motion was overruled.
The view we taire of this case does not require us to decide whether or not this count comes under the well recognized ex^ ception that counts for embezzlement by public officers need not have the same particularity in describing the funds embezzled or the persons from whom and the times at which the money was received as is required in similar counts against private
These decisions sustain the learned court below in refusing to arrest the judgment after the plea of guilty to the second count was entered, for in this respect the plea of guilty must be considered the same as a verdict of guilty under the same count. If'this count was defective, which we by no means admit, it was an apparent defect. The defendant must be presumed to have seen it before he pleaded to it. If he had any reason to object because the count did not state what amount of taxes he had collected, or had embezzled, or from whom and when they were received, it was his duty to do so before the jury was sworn. Had the court below then decided that the count was defective because it did not state, in the blank
The second and third assignments raise the question whether the learned court below erred in sentencing defendant to imprisonment in the Western Penitentiary in Allegheny county “ there to be kept, fed, clothed and treated as the law directs and stand committed until sentence is complied with.” The rule is clear that the court, in imposing sentence, is limited to the punishment prescribed by the terms -of the violated statute. It cannot go beyond the statute’s express terms: Kræmer v. Com., 3 Binn. 577; Scott v. Com., 6 S. & R. 224. So rigidly is this rule applied that even where the court has the power to sentence a prisoner, either to a penitentiary or to a county jail, the former, by the laws creating and- regulating it, imposing hard labor upon all prisoners confined in it, and the latter not, it cannot confine him in the latter at hard labor. If this is to be a part of the sentence he must be sent to the penitentiary: Daniels v. Com., 7 Pa. 371. The act of June 3, 1885, of the violation of which this defendant pleaded guilty, provides that he “ shall be sentenced to an imprisonment not exceeding five years, or to pay a fine not-exceeding five thousand dollars, or both at the discretion of the court.” The Act of June 26, 1895, P. L. 374, provides that all persons sentenced to simple imprisonment for any period of time shall be confined in the county jail where the conviction shall take place. It is clear from these two statutes and from the rules controlling courts in imposing sentences that the learned judge erred when he sentenced defendant to the Western Penitentiary in Allegheny county, “there to be kept, fed, clothed and treated as the law directs.” In the absence of any special law, and none has been called to our attention, there was no power to confine the prisoner in the Western Penitentiary nor to impose upon him the treatment involved in the phrase “ there to be kept, fed, clothed and treated as the law directs.” What would be involved in that phrase can be seen by a reference to the Act of April 23, 1829, P. L. 341. This error, however, does not
It is therefore ordered that the sentence of the court of quarter sessions in this case be reversed, and that the record be remitted to said court, with an order of procedendo, to proceed, and sentence the prisoner afresh, in due order and according to law.