Commonwealth v. Carson

21 Pa. Super. 48 | Pa. Super. Ct. | 1902

Opinion by

W. D. Porter, J.,

The commonwealth appeals from the order of the court below quashing the indictment. The indictment charged that the defendant, “being then and there treasurer of the township of Farmington, in the county of Clarion, having been duly commissioned and acting as such, and being charged as such treasurer with the safekeeping and transfer of the road taxes of said township of Farmington, did fraudulently take, convert, appropriate and apply to his own use the sum of $356.29 of the moneys and property of the said township, so in his charge as treasurer, for safekeeping and transfer, and did neglect and fail to pay over the said sum of $356.29 at the time and place required by law and to the person legally authorized to receive the same.” The Act of April 15, 1834, P. L. 537, section 81, provided for the election of a township treasurer by the electors of every township of the commonwealth ; and in sections 95-98 defined the duties of the officer. The Act of February 28, 1835, P. L. 45, section 8, repealed the 81st section of the act of 1834, above cited, “ except in the counties of Erie, Franklin, Wayne, Venango, Warren, Susquehanna, Tioga and Luzerne. The two acts are to be construed together and provide one general law for the organization of the townships of the state, and another which is special in its application to the townships within that part of the commonwealth’s domain which was at the time embraced within the boundaries of the counties named. Those sections of the statutes in question which are material to this inquiry did not relate to the organization or government of counties. The names of the counties were used in the exception, which gave to certain townships a peculiar form of government, to designate the particular territory which for purposes of county government was known by the several names. The effect is the same as if the same territory had been accurately described by metes and bounds. The legislative intention was that the townships within that territory should have a peculiar township organization and a township treasurer. The Act of March 11, 1839, P. L. 51, which created the county of Clarion, gave to the people and territory embraced within its limits a new count}*- government, but that part of its territory which had been carved out of the county of Venango remained subject to the provisions of the Act of April 15, 1834, in so far as its township organizations were concerned: County of Lackawanna v. Stevens, 105 Pa. 465; Commonwealth v. Ayers, 17 Pa. Superior Ct. 352. It is conceded that Farmington township is situated entirely within that part of the county of Clarion which was in 1839 taken from the county of Venango; a township treasurer was therefore a part of the legal official township organization.

The township treasurer, being a township officer, was subjecfc to the provisions of the Act of March 31, 1860, P. L. 385, section 65, and the money of the township was protected by that statute: Commonwealth v. Morrisey, 86 Pa. 416. The indictment was evidently intended to charge the offense which is punishable under that section of the statute ; it might perhaps have been more skilfully drawn, but it contained enough to clearly define one of the offenses enumerated in the statute. The allegation that the defendant had failed to pay over the money which had come into his hands in his official capacity does not follow the language of the statute to its conclusion, and standing alone would have been defective, but the failure to pay over is but one incident of the complete offense which is charged in the language of the statute. The 65th section of the Act of March 31, 1860, specifies four distinct and separate acts which shall constitute the offense of embezzlement; each one of said acts constitutes the full statutory offense. When two or more of said acts are but successive steps in one transaction, they are merged into one offense and may be charged in one count of the indictment. This indictment distinctly charged that the defendant did fraudulently convert to his own use the money of the township which he had received in his official capacity, in language which was substantially that of the statute and embracing every averment material to define the offense. The further averment that the defendant “ did neglect and fail to pay over the said sum .... at the time and place required by law, and to the person legally authorized to receive the same,” refers to the same transaction, and is to be treated not as an averment of a distinct offense, but as an incident of the fraudulent conversion which is properly charged: Commonwealth v. Mentzer, 162 Pa. 646; Commonwealth v. McCoy, 10 Pa. Superior Ct. 598.

The order quashing the indictment is reversed and the record is remitted for further proceedings in conformity to law.