Commonwealth v. House

• Decision Date: 15 May 1899
• Docket Number: 95-1899
• Citation: 10 Pa.Super. 259
• Parties: Commonwealth of Pennsylvania v. William H. House, Appellant
• Court: Pennsylvania Superior Court

10 Pa.Super. 259

Commonwealth of Pennsylvania v. William H. House, Appellant

No. 95-1899

Superior Court of Pennsylvania

May 15, 1899

Argued April 12, 1899 [Syllabus Matter]

Appeal by defendant, from sentence of Q. S. Allegheny Co., June Sess., 1896, No. 452, on verdict of guilty.

Indictment for embezzlement of $ 26,652.74. Before Kennedy, P. J.

The facts sufficiently appear in the opinion of the court and from the reports of this case on former appeals, 3 Pa.Super 304, and 6 Pa.Super. 92.

[It also appears from the record that the defendant William H House pleaded specially a pardon granted to William C. Moreland to which plea the commonwealth demurred. The court sustained the demurrer] and the defendant being still present in open court and having previously pleaded, non cul et de hoc, issue was joined and at the trial [the commonwealth offered in evidence the record in this case showing the plea entered by Moreland and judgment entered on the plea. Counsel for defendant objected to the offer of evidence as incompetent and irrelevant, under the pleadings in the case, which objections were overruled by the court and evidence admitted.]

Verdict of guilty and sentence thereon to pay a fine of $ 1,000 and undergo imprisonment in the Western Penitentiary for and during the period of one year and ten months. Defendant appealed.

Errors assigned were in sustaining the demurrer filed by the commonwealth to the special plea in bar, pleaded by defendant. In admission in evidence of the plea of W. C. More-land, and judgment thereon. In entering judgment on the verdict.

Affirmed.

D. F. Patterson and Chas. A. O'Brien, with them Chas. W. Ashley, for appellant. -- The criminal liability of this defendant is secondary in its character, and is predicated and wholly dependent upon the guilt of the principal. The guilt of that principal has been effaced and extinguished by the pardon granted to him, for the crime to which this defendant is now sought to be held as accessory; and therefore there can be no conviction in this case. The highest authorities of the country have decided that a pardon not only relieves from penal consequences, but absolutely extirpates and blots out the offense itself; so that it is as if it had never been committed. This leads to the irresistible conclusion, that as in legal effect and contemplation there is not now, and never has been, any principal offense, it is impossible to hold the defendant under the present charge as an aider, abettor and accessory.

The guilt of the principal must always be shown, in the trial of accessories: 1 McClain's Criminal Law, 215, 216.

In In re Garland, 71 U.S. 333, the Federal Supreme Court fully discusses the subject of pardons, and their legal consequences; and in this case may be said to have fully established and settled the American doctrine in relation thereto.

Counsel also cited as to the effect of pardon U.S. v. Klein, 13 Wallace, 128; Carlisle v. U.S. 83 U.S. 147; Osborn v. U.S. 91 U.S. 474; Diehl v. Rodgers, 169 Pa. 316.

John C. Haymaker, district attorney, with him John S. Robb, William Yost and Chas. A. Fagan, for appellee. -- A pardon of the principal, after he is not only convicted but attainted, will in no way avail the accessory: 1 Bishop's (new) Crim. Law (8th ed.), sec. 668 (4).

The commonwealth contends that no such relation as principal and accessory exists between Moreland and House, but that both are principals in the commission of a misdemeanor, under section 65 of the Act of March 31, 1860, P. L. 382, and that the statute defines two substantial and independent offenses; one the embezzlement of public money by the person intrusted with it, and the other is the " aiding or abetting, or being in any way accessory to said act" of embezzlement: Brown v. State, 18 Ohio, 496; Noland v. State, 19 Ohio, 131; Allen v. State, 10 Ohio, 287.

But the statute under which this indictment was found, as we understand it, makes the crime of advising, aiding or participating in an embezzlement a substantive and independent offense: Brown v. State, 18 Ohio, 496; Hartshorn v. State, 29 Ohio, 635; 1 McClain's Crim. Law, 215; Halloway v. The Queen, 79 E.C.L. 317.

Had Moreland been acquitted of the offense charged in the indictment House could have been subsequently put upon trial; and Moreland's acquittal would not have precluded the commonwealth from proving the guilt of House. In the trial of House the commonwealth would have the right to prove the guilt of Moreland regardless of his acquittal, which might have been due to the inability of the commonwealth at that time to produce the evidence, or to the caprice of the jury: People v. Kief, 126 N.Y. 661; State v. Bogue, 52 Kan. 79; Hanoff v. State, 37 Ohio, 178; Goins v. State, 46 Ohio, 457; State v. Phillips, 24 Mo. 475; State v. Ross, 29 Mo. 32.

If the previous acquittal of Moreland would not have been a bar to the trial of House surely his pardon could have no greater force.

That the record of the conviction of the principal or actual perpetrator of a crime or misdemeanor, after final judgment has been entered, is evidence to establish that fact in the trial of an accessory, or of any person charged with aiding in the commission of that offense, is fully recognized in Buck v. Com., 107 Pa. 486.

Before Rice, P. J., Beaver, Orlady, Smith, W. W. Porter, W. D. Porter and Beeber, JJ.

OPINION

ORLADY, J.

The defendant and W. C. Moreland were jointly indicted under the 65th section of the Crimes Act of March 31, 1860, P. L. 382, viz: " If any state, county, township or municipal officer of this commonwealth, charged with the collection, safekeeping, transfer or disbursement of public money, 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 proper 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, used or unaccounted for, which is hereby declared a misdemeanor; and every such officer, and every person or persons whomsoever aiding and abetting, or being in any way accessory to said act, and being thereof convicted, shall be sentenced," etc.

The indictment contained a number of counts in which the defendants were charged with embezzlement of moneys of the city of Pittsburg; they being respectively, city attorney and assistant city attorney of said city, to which indictment, W. C. Moreland entered a plea of guilty on July 29, 1896, and was sentenced to pay a fine of $ 26,652.74 to the commonwealth, and to undergo an imprisonment in the Western Penitentiary for and during the period of three years, etc. On the trial of W. H. House all of the counts, except one designated as the sixth, were abandoned by the commonwealth, and the defendant was convicted and sentenced thereunder, which judgment was reversed by this court: 3 Pa.Super. 304. The defendant was again put upon trial, convicted and sentenced, and the judgment reversed on appeal: 6 Pa.Super. 92. On the next trial, the defendant was convicted under the same count, which, after setting out at length the charge of embezzlement against W. C. Moreland as city attorney, averred that the said William H. House, . . . . on the day and year aforesaid, . . . . and within the jurisdiction of this court, . . . . unlawfully did then and there aid and abet, and then and there was accessory to the unlawful conversion and embezzlement of the said sum of $ 26,652.74 lawful money of the United States government, of the public money of the city of Pittsburg, . . . . At the trial of the case now before us, the defendant filed a special plea, in which the trial, conviction and sentence of W. C. Moreland were recited at length; that after due public notice and hearing in open session, the recommendation with the reasons of the board of pardons were regularly transmitted to the governor of the commonwealth; and contained a declaration of executive clemency in the prescribed form, which concluded as follows: " Therefore, Know Ye. That in consideration of the premises, and by virtue of the authority vested in me by the constitution, I have pardoned the said William C. Moreland of the crime whereof he was convicted as aforesaid, and he is hereby thereof fully pardoned accordingly." Dated January 29, 1898. On this plea, the defendant prayed for judgment, and that he be dismissed and discharged, etc. The commonwealth filed a demurrer which was sustained by the court, and its action thereon is made the basis of the first assignment of error.

The appellant urges that under the sixth count of the indictment the criminal liability of this defendant is secondary in its character, and is predicated and wholly dependent upon the guilt of the principal; that the guilt of the principal has been...