Commonwealth v. Brown
Decision Date | 18 December 1934 |
Docket Number | 35-1935,36-1935 |
Parties | Commonwealth v. Brown et al., Appellants |
Court | Pennsylvania Superior Court |
Argued October 1, 1934
Appeals by appellants from judgments and sentences of Q. S Elk County, January Sessions, 1934, No. 46, in the case of Commonwealth of Pennsylvania v. E. D. Brown et al.
Indictment for misbehavior in office. Before Baird, J.
The facts are stated in the opinion of the Superior Court.
The jury found the defendants guilty and judgment of sentence was entered thereon. Defendants appealed.
Error assigned, among others, were portions of charge.
Judgment in each appeal affirmed.
Charles J. Margiotti, with him John E. Evans, Sr., James H. Duff and James H. Thompson, for appellants.
Albert H. Thomas, with him G. B. Straub, D. J. Driscoll and John H. Cartwright, for appellees.
Before Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.
Appellants, E. D. Brown and T. H. Ledden, two of the commissioners of Elk County, were accused, along with their fellow commissioner, Joseph Wiesner, in an indictment containing thirteen counts, of various wilful, dishonest and fraudulent acts amounting to the common law offense of misbehavior in office. Counts one to eleven, inclusive, charged various intentional, unlawful and dishonest acts in connection with the sale by defendants of six unredeemed tracts of land and the execution and delivery of deeds for five of them; the twelfth, an illegal advance payment to Ledden on account of salary, and the thirteenth, the payment of certain land damages in excess of the amount awarded. In his charge, the learned trial judge instructed the jury that no evidence had been offered in support of the thirteenth count and that the evidence was insufficient to sustain a conviction of any of the defendants upon the twelfth. The jury was also directed to acquit Wiesner because, in the opinion of the trial judge, "there [was] not sufficient evidence to warrant his conviction upon any counts charged in [the] indictment."
The case was submitted to the jury, as against Brown and Ledden, upon counts one to eleven, inclusive; they were convicted upon the first four counts and acquitted upon the others. Sentence was pronounced only under the first and third counts. Each defendant was sentenced to pay a fine of $ 500 and costs: undergo imprisonment in the county jail for a term of six months, and be removed from office. Their separate appeals are now before us and may be disposed of in a single opinion.
We are now concerned only with the first four counts of the indictment. The lands therein mentioned were two large tracts designated by warrant numbers and theretofore purchased by the commissioners, for the use of the county, at treasurer's sales for non-payment of taxes, aggregating approximately $ 2,800; they had remained unredeemed for more than two years. As a general proposition, it is the duty of county commissioners, under a mandatory statute, to offer such lands at a public sale thereof, after advertisement once a week for six successive weeks in two newspapers published in the county, and to execute, acknowledge and deliver, deeds therefor to the purchasers.
The material portions of the first count charged that appellants, as commissioners of Elk County, "unlawfully did then and there wilfully misbehave themselves in said office as county commissioners in that they did a certain dishonest and unlawful act, to wit, they did then and there unlawfully and wilfully expose to public sale and sell on the 24th day of January, 1933, unto one J. L. Trambley of Johnsonburg, Pennsylvania, for the price or sum of $ 12.50 a certain piece or tract of land situate in Jones Township, Elk County, Pennsylvania, known and designated as Warrant No. 2329 containing 990 acres of land without first having given due and legal notice by advertisement in two newspapers published in the County of Elk for six successive weeks that said piece of land, to wit: tract No. 2329 would be sold on said date, to wit: January 24, 1933; but on the contrary, the said E. D. Brown [and] T. H. Ledden . . . . county commissioners of Elk County aforesaid, duly and regularly advertised that said tract No. 2329 would be sold on the 13th day of June, 1932, and upon said date the said sale of said Warrant No. 2329 was by the said defendants, E. D. Brown [and] T. H. Ledden . . . . duly, regularly and publicly adjourned to the 21st day of October, 1932, and on said last mentioned date the said sale of said Warrant No. 2329 was by the said defendants, E. D. Brown [and] T. H. Ledden . . . . duly, regularly and publicly adjourned to the first Monday of March, 1933, and thereafter the said defendants E. D. Brown [and] T. H. Ledden . . . . unlawfully and wilfully and without further notice of any kind, did offer the said Warrant No. 2329 at public outcry on the 24th day of January, 1933, and sold the same unto J. L. Trambley for the sum of $ 12.50, to the great prejudice and damage of the County of Elk and contrary to the form of the Act of General Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania."
The third count was based upon the sale, upon the same date, to the same purchaser, for the same price and under like circumstances with respect to adjournments and lack of notice, of another tract containing the same acreage but designated as Warrant No. 2332.
It was stipulated and agreed by counsel for appellants and counsel for the Commonwealth, inter alia, that the proposed sale of these tracts advertised for June 13, 1932, was regularly and duly advertised for that date. The adjournment to October 21, 1932, is not alleged to have been unlawful. The gist of the offense charged is that appellants on October 21, 1932, publicly adjourned the sale of these tracts to the first Monday of March, 1933, and then, without notice or advertisement of any kind, wilfully, illegally and dishonestly put them up and sold them on January 24, 1933, to J. L. Trambley for a trifle, thereby stifling any possibility of competitive bidding and defrauding the county out of the opportunity to which it was entitled of getting the highest price obtainable at a public sale, held after legal notice to all interested persons.
Counts two and four charged that appellants, having unlawfully, fraudulently and wilfully thus sold the tracts described in counts one and three, misbehaved themselves in their office by unlawfully, wilfully and dishonestly making, executing, acknowledging and delivering to Trambley deeds for them. As no sentence was imposed under either of these counts, we may confine our attention to the nature of the offense charged in count one and the like offense in count three, and to the evidence by which the Commonwealth sought to sustain those charges.
It is clear that the offense with which appellants were charged and for which they were sentenced was the common law offense of misbehavior in office and not the statutory offense of neglecting or refusing to perform a duty imposed upon them by law -- the latter being the misdemeanor described in, and punishable merely by a fine under, the Act of May 2, 1929, P. L. 1278, 16 PS § 62.
Here the Commonwealth had the burden of proving more than a mere negligent failure to perform the imperative statutory duty of giving public and legal notice that the tracts would be offered at public sale on January 24, 1933. A sale without the notice required by law would be illegal but not inherently criminal. If, however, the alleged acts of the appellants in omitting to give the requisite notice for January 24, 1933, and pretending to adjourn the sale to a later date, were shown to have been intentional acts, designed to conceal from known or possible prospective purchasers the purpose of appellants to have the lands put up on January 24, 1933, and knocked down to Trambley for a nominal bid, the essential elements of the offense charged would be present: Com. v. Rosser et al., 102 Pa.Super. 78, 156 A. 751, 156 A. 751; Com. v. Kline, 107 Pa.Super. 594, 164 A. 124.
There was evidence, and particularly that of Frank O'Neill, commissioner's clerk for more than five years, from which a jury could find these material facts:
The tracts described in counts one and three were not the only ones sold on January 24, 1933; certain other lands (some of which are mentioned in other counts) were also sold at that time and it was agreed that the sale of these other tracts was duly advertised for that date.
The sale of October 21, 1932, was conducted in the commissioners' office by O'Neill and in the presence of Ledden; the lands mentioned in counts one and three were not offered at that sale. The announcement was publicly made that the sale of these two tracts was adjourned to the first Monday in March, 1933, and no notice of any kind was ever given that they would be offered for sale at any earlier date. In writing up the minutes of the proceedings of the commissioners on October 21, 1932, O'Neill left a blank space. Early in December, 1932, O'Neill, at the instance and under the direction of Brown, inserted in this blank space a false minute, drafted by Brown and purporting to show that the sale of the two warrants in question "was adjourned until the next regular commissioners' sale to be held January 24, 1933."
Prior to the original advertisement of these lands, Brown, after telling O'Neill they were valuable and the gas company was after them, said to him, "if we could work these sales through we could make some money out of it and we better get it before somebody else got it." Brown added that "he would have J. L. Trambley to bid it in."
The sale of January 24, 1933,...
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