176 Pa. Super. 32 | Pa. Super. Ct. | 1954
Opinion by
Appellee, Arthur Turner, was indicted and pleaded not guilty to a charge of cheating by false pretenses under The Penal Code (Act of June 24, 1939, P. L. 872, sec. 836, as amended by the Act of May 21, 1943, P. L. 306, sec. 1, 18 PS sec. 4836) in the Court of Quarter Sessions of Delaware County. At the close of the Commonwealth’s case the trial judge sustained defendant’s demurrer to the evidence, and the Commonwealth has appealed.
Appellee was employed by the Congoleum-Nairn Company at Trainer, Delaware County, from July 10, 1943 until March 7, 1952. On November 8, 1949 he went to the office of W. G. Brittain, chief clerk of his employer, to report that he had not received his vacation pay for 1949. Upon being shown photostatic copies of two returned checks in the amount of $57.68 each (which apparently represented his compensation for the period in question), he executed an affidavit that the signatures purporting to be his endorsements thereon were not his, nor authorized by him, and were believed by him to be forgeries, and that he had not received the proceeds of the checks. Thereupon the
Urban Doeber, a Commonwealth witness, testified that he had owned and operated a retail liquor store in Wilmington, Delaware, and that over a period of five or six years he had been cashing appellee’s pay checks “practically every week”. He testified that he had cashed both sets of checks in question when appellee presented them to him and that he had been required to make restitution in the amounts of $115.86 and $92.34 respectively.
Appellee at the time of the execution of the affidavits and at time of trial was a resident of the State of Delaware. The Commonwealth has contended in the court below, and now before us, that the two-year statute of limitations on actions for cheating by false pretenses embodied in the Act of March 31, 1860, P. L. 427, sec. 77, as amended by the Act of April 6, 1939, P. L. 17, sec. 1, 19 PS sec. 211, was inapplicable and that, instead, the case fell within the exception of the Act, viz., “Provided however, That if the person against whom such indictment shall be brought or exhibited, shall not have been an inhabitant of this State, or usual resident therein, during the said respective terms for which he shall be subject and liable to prosecution as aforesaid, then such indictment shall or may be brought or exhibited against such person at any period within a similar space of time during which he shall be an
As early as Com. v. Bates, 1 Pa. Superior Ct. 223, (1896), it was decided that where an indictment is found after the statute of limitations has run, it is incumbent on the Commonwealth to show that the case is within the exception. Whether it has sustained that burden of proof is the issue now before us.
The briefs of counsel for both parties deal at length with the question of the sufficiency of the Commonwealth’s evidence to warrant submission of defendant’s guilt to the jury. For the purposes of our present discussion we lay aside that issue in its entirety, and assume on the demurrer the truth of the facts as presented by the prosecution. The matter then resolves itself into the question of whether, where a defendant has committed a statutory offense in this Commonwealth and during the entire period of the statute of limitations appears regularly on weekdays at his employment in this Commonwealth, where he is available for arrest, does the fact of his residence in another
The Commonwealth contends that the instant case is governed by the decision in Com. v. Wilcox, 56 Pa. Superior Ct. 244, wherein the two defendants at the time of commission of the offense in Pennsylvania were residents of the State of New York. One remained there, while the other between time of finding of the indictment and trial moved to and became engaged in business in Oklahoma. The Supreme Court held that they were not within the protection of the statute of limitations for the reason that they were not “usual residents” of this Commonwealth. An examination of the argument of defendants’ counsel (page 247) reveals that they urged that the statute had barred prosecution even though defendants were not Pennsylvania residents, on the ground that the residence of at least one of them, within close proximity to the borderline separating New York and Pennsylvania, was at all times known to the Commonwealth’s officers. The Court considered the lack of vigilance on the part of the Commonwealth’s officers a “collateral issue” and in rejecting defendants’ contention applied the “plain meaning” construction of the statute (page 251). So far the Wilcox case and the instant one are analogous. We have searched the Wilcox opinion for evidence tending to show that either of the defendants commuted or even on occasion was known by the Pennsylvania authorities to have crossed the state borderline so as to have been available for seiwice of process here, and have found no such inference. In the present case, defendant not only appeared daily at his employment in Delaware County but Avas within the building and on the premises of the company — his employer —which he is charged in the indictments with defrauding. This, in our view, marks the point of divergence
Bearing in mind throughout that the primary purpose of our criminal laws is to bring offenders to justice, we must nevertheless, take cognizance of the fac.t that .in conjunction with the definition of .and punishment for each crime the legislature has imposed a period of- limitation of actions,-. the. sanctions, of which are mandatory.- If-we were to hold'that this case fell within the proviso'tolling the-statute of limitations) then under the circumstances of this case when, if ever, would the statute operate as a bar to prosecution? Would a prospective defendant, after his day’s work in Pennsylvania, instead of repairing .to his usual residence across the state line, be required -to
The order sustaining the demurrer is affirmed.