31 Pa. Super. 96 | Pa. Super. Ct. | 1906
Opinion by
The defendants were arrested and had a hearing before a justice of the peace upon the charges contained in the indictments. But the magistrate’s return of the proceedings was defective in that it failed to set forth that the offenses were, committed in Delaware county, and for that reason it was. quashed by the court upon the defendants’ motion, • Upon the
We do not deem it necessary to attempt a restatement, or to enter into an extended discussion, of the modes of initiating criminal prosecutions in this commonwealth. This was done by Mr. Justice Clark, in Commonwealth v. Green, 126 Pa. 531, and to his opinion we call attention. It is sufficient for present purposes to say that the general doctrine enunciated by Judge King, in Lloyd & Carpenter’s Case, 3 Clark, 188, relative to the discretionary power of the district attorney to prefer a bill of indictment without a previous binding over or commitment of the accused, and to the principles which ought to guide that officer in the exercise of this extraordinary power, and to the safeguards against an abuse of it, has been accepted and reiterated in the decisions of the Supreme Court and of this court, and must be regarded as the settled policy of the law in this commonwealth: Rowand v. Commonwealth, 82 Pa. 405; Commonwealth v. Green, 126 Pa. 531; Commonwealth v. Brown, 23 Pa. Superior Ct. 470. We have no disposition, even if we had the power, to enlarge the number of exceptional cases in which the commonwealth will be justified in departing from the usual mode of proceeding by complaint and hearing before a committing magistrate. But, as was said by Mr. Justice Woodward, it is apparent that upon considerations involving the maintenance of the public security, it is necessary that this extraordinary and delicate authority be lodged somewhere, and it is apparent also that it has been lodged in the prosecuting officer of the commonwealth; it is to be exercised, in the ordinary case, under the supervision of the proper court of criminal jurisdiction, and in all oases of its
To have a correct understanding of the question raised by the fourth assignment of error it is necessary briefly to review the evidence.' The defendants were directors of the poor for the county of Delaware, and as such received from the county a considerable sum of money to be expended by them in the performance of the duties of their office. This money, said to amount to $40,000 or more, was deposited by them in a bank in the name of one of them as treasurer. It was drawn out upon orders issued by the directors, and the directors kept at the county house a cashbook in which, properly, the amounts, dates, numbers, payees and purposes of these orders were set down. In the audit of their accounts for the year 1904, suspicion was directed to ten orders purporting to have been issued to different persons for different amounts, aggregating about $1,500. These orders purported to have been indorsed by the payees and subsequently indorsed by one or the other, and sometimes by both, of the defendants. Without going into details further, it is sufficient to say that there was abundant evidence to warrant a jury in finding that the names of these payees were fictitious ; that the money received upon the orders was not received by them but was received by one or the other of the defendants; and that the corresponding entries in the cashbook in the names of the ostensible payees, instead of in the names of the defendants, were not true entries. Before the proceedings of the auditors were concluded the defendants repaid the amount of these orders to the poor district, and then
It is important to notice that the defendants were acquitted on the second and third counts of the indictments, which were drawn under section 65 of the Act of March 31, 1860, P. L. 382, and were convicted on the fifth count, which was drawn under the second section of the Act of June 12, 1878, P. L. 196. It cannot be declared as an abstract proposition that a verdict of guilty, which implies that the accused, being an officer of a quasi municipal corporation, as such received or possessed himself of the money of the corporation, otherwise than in payment to him of a just debt or demand, and, with intent to defraud, omitted to make a full and true entry thereof in the books and accounts of the corporation, would be necessarily inconsistent with a verdict acquitting him of the charge of unlawfully and fraudulently converting the money to his own use. In other words, a motion in arrest of judgment could not be sustained. This, we think, needs no elaboration. But it is argued that under the evidence in the case, a verdict of not guilty of the latter charge would necessarily imply an exoneration of the defendants, “ from getting or even using the money of the poor district represented by the ten orders,” and therefore it was erroneous to charge, as the court did in effect, that the jury might convict on the fifth count notwithstanding they acquitted on the second and third counts. We cannot assent to this proposition. The fallacy consists in the unwarranted assumption that the verdict of acquittal on the second and third counts necessarily implies a finding by the jury that the names of the payees in the orders were not fictitious, and that the money represented by them went to the payees and not to the defendants. It is difficult to see how the jury could find the facts necessary to a conviction on the fifth count, as they were fully warranted by the evidence in doing, without also concluding that the defendants were guilty of the charges contained in the second and third
The judgment in each of the foregoing cases is affirmed and the record in each case is remitted to the court below to the end that the sentence imposed upon each defendant be fully ■ carried into effect.