30 Pa. Super. 321 | Pa. Super. Ct. | 1906
Opinion by
The first specification alleges that the court below erred “ in overruling the third paragraph of defendant’s demurrer, which paragraph is as follows: That the offense charged in said indictment is barred by the statute of limitations, the same having been found more than two years after the moneys, alleged to have been received by the defendant the which he failed to pay over, came into his hands.” The indictment charged in apt language that the defendant had been duly elected and qualified as cleric of the court of quarter sessions of the peace for the county of Schuylkill, and exercised the duties, powers, rights and privileges of said office from the first Monday of January, 1900, until January 5, 1908 ; and that he had by virtue of his office collected and received from applicants for license to sell liquor in said county fees amounting to the sum of $7,234.28 .and upwards; for and in the name of and on account of the county of Schuylkill, for safe-keeping and transfer to the treasurer of the said county of Schuylkill; and that F. J. Noonan, the treasurer of said county of Schuylkill, did on June 30,1905, demand and require him, the said John T. Shoener, to pay over
'The indictment was drawn under the provisions of the 65th section of the Act of March 31, 1860, P. L., 382 which provides that: “ If any state, county, township or municipal officer .... shall convert to his own use, in any way whatsoever, or shall use, by way of investment in any kind of property or merchandise, any portion of the public money intrusted to him for collection, safe-keeping, transfer or disbursement, or shall prove a defaulter, or fail to pay over the same when thereunto legally required by the state, county or township treasurer, or other officer or person authorized to demand and receive the same, every such act shall be deemed and adjudged to be an embezzlement of so much of said money as shall be thus taken, converted, invested, used or unaccounted for, which is hereby declared a misdemeanor.” The present Chief Justice construed this section of the statute in Commonwealth v. Mentzer, 162 Pa. 646, and there said: “ The section clearly specifies four distinct and separate acts with reference to public money, which shall constitute the offense of embezzlement, to wit: conversion to the officer’s own use, investment in property or merchandise, becoming a defaulter, or failing to pay over on proper demand. These are clearly enumerated in the disjunctive, and it is further declared that ‘ every such act ’ shall be deemed and adjudged an embezzement. Each of these acts, therefore, though of very varying character and degree of moral turpitude, is of equal legal import, and by itself constitutes the full statutory offense. Prima facie, therefore, each of such acts charged is a separate crime, and where such is the fact no two can be charged in the same count. But .... where .... two or more of the enumerated acts are in truth only successive steps in one appropriation or embezzlement of the same money, it would be contrary to the fundamental principles of our criminal jurisprudence to hold that they had not merged and become but one offense.” This indictment charged the defendant with only one of the acts by the statute made a misdemeanor; -the failure to pay over the money when thereunto legally required
The defendant raised in various forms the question as to when the statute of limitations, as to this offense, began to run, by his first, second, third and fourth written requests for instructions to the jury. These points presented but one question in different forms, and by them the court was requested to instruct the jury; that the Act of March 31, 1876, P. L. 13, made it the official duty of the defendant to pay into the county treasury on the first Monday of each month during his term and the first Monday of the month next after the expiration of his term all fees received by him during the preceding month, and that the defendant was required by law to pay the $7,243.28 mentioned in the indictment into the county treasury on the first Monday of January, 1903, and if the jury found that he had .failed to do so, “ the offense of failure to pay over under
The fifth and sixth specifications of error may be properly considered together. The defendant interposed a special plea in bar, setting forth at length the record of the proceedings in the case of the Commonwealth v. John T. Shoener, No. 75, March Term, 1903, of the court of quarter sessions of the county of Schuylkill, and the review thereof- by the Supreme Court of Pennsylvania on appeal to No. 286, January Term, 1904, reported 212 Pa. 527, and upon the record so pleaded prayed judgment of the court if he ought to be put further to answer the present indictment. The commonwealth demurred to the plea, and the court sustained the demurrer, which ruling is the subject of the fifth specification of error. The defendant then entered a general plea of autrefois acquit and nob g'uilty. The only evidence offered under the plea of autrefois acquit was the same record which had been specially pleaded in bar, there being no dispute that the defendant was the person charged in the former indictment; and upon that issue the jury, under the instructions of the court, rendered a verdict in favor of the commonwealth. The instruction of the court in directing the jury to find for the commonwealth on that issue is the subject of the sixth specification of error. On demurrer to a plea in bar the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled thereto. If the plea is former acquittal, the question whether the former acquittal was for the same offense depends upon the record pleaded, and not on the arguments or inferences deduced therefrom: Murphy v. Richards, 5 W. & S. 279; Heikes v. Commonwealth, 26 Pa. 513. The
There was no error in the judgment of the court upon the demurrer to the special plea in bar. The instruction of the court to the jury to find for the commonwealth upon the issue raised by the defendant’s plea of autrefois acquit might be sustained upon the same grounds alone, but as the facts, although
The verdict of the jury at the former trial, found the defendant not guilty upon ten counts of the indictment and guilty upon three counts. The verdict as to the counts upon which the defendant was acquitted established that he had not prior to that time converted the money to his own use, or invested it in property or merchandise. These are offenses distinct from the mere failure to pay over on proper demand, and the acquittal as to them would not shield the defendant against the present prosecution: Commonwealth v. Mentzer, 162 Pa. 646. The three counts upon which the defendant was found guilty were the fourth, eighth and twelfth. The fourth count charged him with failure to pay over upon demand the moneys received by him as license fees on January 7, 1901; the eighth count charged a like offense with regard to moneys received on January 6, 1902, and the twelfth count charged him with a failure to pay on demand moneys received by him on January 5, 1903; the failure to pay over on demand the money received by the defendant for license fees in the month of December in each year of his term, as shown by his report filed on the first Monday of January following, being laid in a separate count. The court of quarter sessions did not sentence the defendant upon the fourth count of the indictment, which charged the failure to pay over the fees received in January, 1901. The court did sentence the defendant on the eighth and twelfth counts, which, respectively, charged the failure to pay over on demand the fees included in his official reports for January, 1902, and January, 1903. That judgment was reversed by the Supreme Court, without a new venire: Coro
The record offered in evidence did not show an adjudication that the defendant had not received the money, nor that having received it he had paid it over. It did show an adjudication by the court of last resort that the defendant had the right to retain this money and could not legally be required to pay it over until May 4, 1903. The agreement in the nature of a case stated, which was thus conclusively determined to vest in the defendant the right to retain these fees until the question of their ownership was determined by the Supreme Court, was made, executed and filed of record in the court of common pleas of Schuylkill county on November 21, 1901. The fees involved in the present indictment were not received hy the defendant until after that date, a part of them within two months and the remaining portion over a year after the agreement had been filed of record. The agreement was in force at the time the defendant received the fees. There never was a time when a lawful demand could have been made upon the defendant to pay these fees, until after the question of their ownership was determined by the Supreme Court on May 4, 1903. This was distinctly held with regard to the twelfth count of the indictment in the former proceedings, which distinctly charged the receipt of the fees to have been in January, 1903, and which was supported by evidence that the money
The defendant had received the money in question by virtue of his office; when the question of its ownership was determined by the decision of the Supreme Court on May 4, 1903, it became his duty to pay the money to the county treasurer, but his failure to pay it did not, under the provisions of the 65th section of the act of March 31, 1860, become criminal until after the county treasurer had made demand. When the treasurer did make such demand, the offense was complete. The instruction of the court below to the jury to render a verdict in favor of the commonwealth upon the issue raised by the plea of autrefois acquit was, under the records and evidence presented, correct: Solliday v. Commonwealth, 28 Pa. 13, and the cases hereinbefore cited. In this view of the case we do not deem it necessary to consider the question of the constitutionality of the Act of June 12, 1878, P. L. 196, section 6, nor whether the period of limitation of prosecutions in cases of this, character is by that statute extended to four years. All the assignments of error are dismissed.
The judgment is affirmed, and it is ordered that the defendant appear in the court of quarter sessions of Schuylkill county and by that court be committed until such part of the sentence as had not been performed when this appeal was made a supersedeas, be complied with.