Commonwealth v. Duffy

• Decision Date: 03 January 1881
• Citation: 96 Pa. 506
• Parties: Commonwealth v. Duffy.
• Court: Pennsylvania Supreme Court

96 Pa. 506

Commonwealth v. Duffy.

Supreme Court of Pennsylvania.

January 3, 1881

November 25, 1880

1. Under the 77th section of the Criminal Procedure Act of March 31st 1860, the limitation of prosecutions for forgery, as a misdemeanor, is two years and not five.

2. The Act of March 23d 1877 provides, " That hereafter the offence of forgery, whether the same be a misdemeanor or a felony, shall not be held barred by the Statute of Limitations, when the indictment therefor shall be brought or exhibited within five years next after the offence has been committed:" Held, that said act works no change in the rules of evidence or quantum of proof and is not an ex post facto law within the meaning of the federal and state Constitutions when applied to a case which was only subject to a bar of two years when the offence was committed.

3. An act of limitation is an act of grace purely on the part of the legislature, and especially is this the case in the matter of criminal prosecutions. The state makes no contract with criminals, at the time of the passage of an act of limitations, that they shall have immunity from punishment if not prosecuted within the statutory period. Such enactments are measures of public policy only. They are entirely subject to the mere will of the legislative power, and may be changed or repealed altogether as that power may see fit to declare.

4. When a right to acquittal has not been absolutely acquired by the completion of the period of limitation, that period is subject to enlargement or repeal without being obnoxious to the constitutional prohibition against ex post facto laws.

Before MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

SHARSWOOD C. J., absent.

Error to the Court of Quarter Sessions of Crawford county: Of October and November Term 1880, No. 255.

Indictment of J. C. Duffy for forgery.

In the month of September 1875 the defendant was in the employ of the Howe Machine Company, as its agent, for the sale of its sewing machines. He was then residing in the county of Armstrong, Pennsylvania, and was employed by the said company to sell machines in that vicinity. On or about the 23d of September 1875 he sold a machine to a Mrs. P. J. Wolf, of Templeton, county of Armstrong, for the sum of $75, for which he took her note, payable to the Howe Machine Company one year thereafter. It was his duty, as agent, once every week to make report of all sales and business done by him to B. F Porter, manager of the company, at his office in the city of Meadville, Pa. Duffy kept the original note and sent by mail on or about the 25th of September 1875 a copy of it, to which he forged the name of P. J. Wolf, to B. F. Porter at Meadville, by whom it was received. This note was placed to his credit on the books of the company, and by Porter sent to the office of the company at Pittsburgh. Shortly thereafter Duffy left the employ of the Howe Machine Company, and when the year had elapsed the note was forwarded for collection but it was returned, they stating that it could not be collected. The note was subsequently, about December 1877 sent for collection to Kittanning. It remained there uncollected until the collecting agent of the company, about the fall of the year 1878, went to Templeton and saw Mr. and Mrs. Wolf and demanded payment of the note. Mrs. Wolf claimed that she had paid for the machine and in verification thereof produced the original note, and upon being shown the one in the possession of the company declared it a forgery. This was about the -- day of -- 1878. Shortly thereafter the Howe Machine Company on the -- day of January 1879, made complaint against Duffy for forgery and uttering a forged note, and he was thereupon arrested. On February 9th 1880, in the Quarter Sessions of Crawford county, February term 1880, an indictment was presented and a true bill found against him. The defendant then filed a motion to quash the indictment, which was overruled and the defendant ordered to plead. The cause was continued until the May sessions when the defendant pleaded not guilty. He then again contended that the indictment not having been found within two years was barred by the statute.

The court reserved its opinion, stating if the defendant should be convicted it would entertain a motion in arrest of judgment when the question could be argued. Thereupon the defendant went to trial and the jury found him guilty on the second count in the indictment, namely, for uttering a forged note, & c. The motion in arrest of judgment was then filed, argued, and upon July 10th 1880, the motion in arrest of judgment was granted, the court, Church, P. J., filing the following opinion:

" This defendant was convicted of uttering a forged instrument of writing under the 169th section of the Act of 1860, the criminal code. This offence is by that section made a misdemeanor. On the trial the defendant raised the question and asked us to charge the jury that he could not be convicted because it appeared both from the indictment and the evidence that the offence charged had not been committed within two years of the time the indictment was preferred against him. We left the jury to find the actual guilt or innocence of the defendant and reserved the question of the Statute of Limitation to be determined, if a conviction followed by motion in arrest of judgment. That motion is now before us and it raises the simple question whether this offence of uttering a forged promissory note of an individual having been committed on or about the 23d of September 1875, was barred of an indictment found February 9th 1880.

Some kind of forgeries defined in the Criminal Code are felonies. They are to be found described in the Criminal Code from section 164 to 168 inclusive. They include among other things ‘ the falsely and fraudulently making, forging or counterfeiting bank notes, or bankers' checks and drafts, and also offences against the current coin of the government. Other kinds of forgeries, especially as defined in section 169 of the Code are misdemeanors. They comprise the fraudulently making, signing, altering or publishing any written instrument (other than notes, bills, checks or drafts already mentioned) to the prejudice of another's rights,’ & c. It is under this latter section the defendant is convicted.

The section of the code limiting prosecutions provides, inter alia, ‘ That all indictments brought or exhibited for any crime or misdemeanor, murder, & c., excepted, shall be brought and exhibited within the time and limitation hereinafter expressed, and not after, that is to say, all indictments of prosecutions for treason, arson, * * * perjury, counterfeiting, forgery, uttering or publishing any bank notes, checks, and drafts, & c., * * * shall be brought and exhibited within five years next after the offence shall have been committed, and all indictments and prosecutions for other felonies not named or excepted heretofore in this section, and for all misdemeanors (perjury excepted) shall be brought or exhibited within two years next after such felony or misdemeanor shall have been committed.’ It is manifest from the reading of this section that the ‘ forgery’ named, for which there is a five years' limitation, is the forgery of bank notes, checks or drafts, which had been made a felony. The word is in close and immediate connection with the counterfeiting, uttering and publishing the bank notes, checks and drafts, and although a better word in this sentence would have been forging rather than forgery, the construction contended for cannot be doubted. We are aided in this construction by the next clause, ‘ And all indictments for all misdemeanors, perjury excepted, shall be brought within two years.’

This offence, then, of what we may call ‘ common forgery,’ is forgery at common law; and being a misdemeanor, is barred by the two year limitation. This construction is not a forced one; but the natural, reasonable and fair construction of the section. Any other would do violence to the force of language and the grammatical and logical construction of the paragraph. The legislature evidently thought this distinction was made, for on the 23d of March 1877 they passed the following act: ‘ That hereafter the offence of forgery, whether the same be a misdemeanor or felony, shall not be held barred by the Statute of Limitation when the indictment therefor shall have been brought or exhibited within five years next after the offence has been committed.’

It is claimed by the Commonwealth that even if before this act was passed, the limitation for this offence was only two years yet this act extended the limitation to five years, and yet the act applies to the indictment before us. It will be borne in mind that this offence was committed 23d September 1875. The two years limitation of the Act of 1860 had not elapsed on March 23d 1877, when the five year limitation act was passed, but the two years had much more than expired when this indictment was found. The act of 1877 provides that ‘ hereafter the offence of forgery shall not be held barred,’ & c. Does it not apply to future offences, and to future offences only? Laws are presumed to be prospective rather than retrospective. There is no canon of construction better settled than this: that a statute shall always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all question as to the intent of the legislature--because retrospective laws and laws divesting vested rights, though they may not be repugnant to any fundamental law, are repugnant to all principles of sound and wise legislation: Taylor v. Mitchell, 7 P. F. Smith 209; Dewart v. Purdy, 5 Casey 113, and cases cited in Bright. Di...