Commonwealth v. Hubbs

• Decision Date: 10 October 1939
• Docket Number: 173-1939
• Citation: 8 A.2d 618,137 Pa.Super. 244
• Parties: Commonwealth, Appellant, v. Hubbs (No. 2)
• Court: Pennsylvania Superior Court

8 A.2d 618

137 Pa.Super. 244

Commonwealth, Appellant, v. Hubbs (No. 2)

No. 173-1939

Superior Court of Pennsylvania

October 10, 1939

Argued May 5, 1939

Appeal from order of Q. S. Phila. Co., Nov. Sessions, 1938, No. 650 in case of Commonwealth v. Edward Hubbs.

Indictment charging defendant with misbehavior in office.

The facts are stated in the opinion of the Superior Court.

Rule to quash indictment made absolute, opinion by Lamberton, J Commonwealth appealed.

Error assigned was the action of the court below in quashing the indictment.

Order affirmed.

Bryan A. Hermes, with him Thomas I. Guerin, Deputy Attorneys General, Claude T. Reno, Attorney General, James N. Lafferty and Gilliat G. Schroeder, Assistant Deputy Attorneys General for appellant.

Thomas D. McBride, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Cunningham, J.

This is the companion appeal referred to in the preceding opinion in Com. v. Hubbs (No. 1), 137 Pa.Super. 229, 8 A.2d 611. A recital of the procedure which resulted in the quashing of the present indictment returned at No. 650 November Sessions, 1938, of the court below, as well as the perjury indictment at No. 649 of that term, will there be found.

The indictment with which we are now concerned contains four common law counts, each reciting that the defendant, from March 10, 1937, to the date of the finding of the indictment (November 22, 1938), was a public officer, -- Superintendent of the Bureau of Police, Department of Public Safety of the City of Philadelphia -- charged with a duty to cause the laws of the Commonwealth to be executed and enforced. The counts recite that "in disregard, breach and violation of his duties as Superintendent of the Bureau of Police, on March 10, 1937, and on divers other days and times between that date and the day of the finding of this indictment:

"1. . . . . the said Edward Hubbs, did wilfully omit, neglect and refuse to cause the laws of the Commonwealth prohibiting the maintenance, setting up, management and control of gambling houses where money or other valuable things were played for, staked or betted with bards, dice and other means, to be executed and enforced. . . . .

"2. . . . . the said Edward Hubbs, did negligently omit, neglect and refuse to cause the laws of the Commonwealth prohibiting the maintenance, setting up, management and control of gambling houses where money or other valuable things were played for, staked or betted with cards, dice and other means, to be executed and enforced. . . . .

"3. . . . . the said Edward Hubbs, did wilfully omit, neglect and refuse to cause the laws of the Commonwealth prohibiting persons from engaging in pool selling, and book making to be executed and enforced. . . . .

"4. . . . . the said Edward Hubbs, did negligently omit, neglect and refuse to cause the laws of the Commonwealth prohibiting persons from engaging in pool selling and book making to be executed and enforced." (Italics supplied)

The quashing of the indictment was sought upon three grounds: "1. Defendant is not a public officer and is therefore not subject to indictment for misbehaviour in office. 2. All counts of the indictment are insufficient because they do not charge corruption. 3. The wording of the indictment is too general."

Defendant's first contention was properly overruled by the court below. See Richie v. Philadelphia, 225 Pa. 511, 74 A. 430, Com. v. Miller, 94 Pa.Super. 499.

In disposing of the second and third propositions advanced in behalf of the defendant, Lamberton, J., correctly said: "Misbehaviour in office may arise from failure to perform a statutory duty, or from failure to perform a common law duty. In either case the indictment must charge more than negligence." As the second and fourth counts merely charged the defendant with having negligently omitted and refused to cause the laws against setting up gambling houses and against engaging in pool selling and book making to be enforced, they were properly quashed.

The only counts requiring consideration upon this appeal by the Commonwealth are the first and third, charging that the defendant, a public officer, (having a duty to cause the laws of the Commonwealth to be executed and enforced), "not regarding the duties of his said office but perverting the trust imposed in him and in disregard, breach and violation of his duties, . . . . did wilfully misbehave himself in office," in the manner above recited.

If these counts had charged with reasonable particularity the breach of a positive statutory duty of a ministerial nature, we think an averment that the breach was wilfully committed would have been sufficient. An indictment, or a count therein, specifically charging a public officer with a wilful breach of a mandatory duty prescribed by a statute would, in our opinion, be a sufficient accusation of having committed a common law misdemeanor: Com. v. Rosser et al., 102 Pa.Super. 78, 156 A. 751; Com. v. Kline, 107 Pa.Super. 594, 164 A. 124; Com. v. Brown et al., 116 Pa.Super. 1, 175 A. 748.

In cases of the class just cited the wilful failure to perform a ministerial duty comes within the common law definition of misdemeanor in public office, and it is not necessary to aver or prove that the officer acted with a corrupt, fraudulent or dishonest intent.

But where the nature of the duty is such as to permit the exercise of discretion, there must be present the additional element of an evil or corrupt design to warrant conviction: Com. v. Miller, supra. "Malfeasance in office cannot be charged except for breach of a positive statutory duty or for the performance of a discretionary act with an improper or corrupt motive: (authorities)." McNair's Petition, 324 Pa. 48, 55, 187 A. 498.

The reason underlying the rule is that public officers are not to be hampered in the performance of discretionary duties by the fear of criminal prosecution for an error of judgment committed in good faith.

Neither of the counts under consideration contains any reference to a statute prescribing the duties the defendant undertook to perform by accepting appointment to his office. An examination of the only legislation which seems to have any bearing upon the office described in the indictment -- Superintendent of the Bureau of Police, Department of Public Safety of the City of Philadelphia -- discloses this situation: By the Act of June 25, 1919, P. L. 581, Art. 2, § 6, 53 PS § 2927, known as the City Charter Act, the Mayor of Philadelphia is "responsible for the good order and efficient government of the city." Article 5, §§ 1 and 3, 53 PS §§ 3021, 3023, provides that "There shall be a department of public safety of which the director of public safety shall be the head," and to him falls "the care, management, administration, and supervision of the police affairs and all matters relating to the fire and police forces." This act makes no specific reference to the Superintendent of Police. Thus it is apparent that in so far as statutory regulation is concerned, he is directly responsible to the Director of Public Safety, who, in turn, is responsible to the Mayor, the latter being primarily accountable for law enforcement in the City of Philadelphia.

The only duties of the defendant which can even be implied under the City Charter are discretionary in character. He is a subordinate officer charged with the general duty of superintending the police force, and his...