Commonwealth v. Keuhne

• Decision Date: 03 March 1910
• Docket Number: 133-1909
• Citation: 42 Pa.Super. 361
• Parties: Commonwealth v. Keuhne, Appellant
• Court: Pennsylvania Superior Court

42 Pa.Super. 361

Commonwealth v. Keuhne, Appellant

No. 133-1909

Superior Court of Pennsylvania

March 3, 1910

Argued October 22, 1909 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of Q. S. Phila. Co.-1908, No. 12 on verdict of guilty in case of Commonwealth v. Albert E. Keuhne.

Indictment for embezzlement.

At the trial the jury returned a verdict of guilty, upon which judgment of sentence was passed.

On motion to arrest judgment Martin, P. J., filed the following opinion:

The defendant was indicted on November 2, 1908, for fraudulent embezzlement of money belonging to the " German Daily Gazette Publishing Company," a body corporate, by whom he was employed.

It was proved that he appropriated the money during the year 1905. The verdict was " Guilty."

A motion in arrest of judgment was made upon the ground that the prosecution was barred by the statute of limitations.

Defendant was indicted under the Act of June 12, 1878, P. L. 196, which enacts that, " If, any person being an officer, director, superintendent, manager, receiver, employee, agent, attorney, broker, or member of any bank or other body corporate, or public company, municipal or quasi municipal corporation, shall fraudulently take, convert or apply to his own use, or the use of any other person, any of the money or other property of such bank, body corporate or company, municipal or quasi municipal corporation . . . . he shall be guilty of a misdemeanor."

Section 6 provides that indictments may be commenced and prosecuted at any time within four years from the time the alleged offense shall have been committed.

It was claimed on behalf of defendant that this act is not sufficiently comprehensive to include an employee of a corporation other than one of a public, municipal or quasi municipal character, except a bank; that the words " or other body corporate" should be restricted under the doctrine of noscitur a sociis, or ejusdem generis, and that " public company," " municipal or quasi municipal corporations" appearing in the act indicates the genus to which the legislature intended the act to apply.

It was said by Coleridge, J., in Pocock v. Pickering, 21 L. J.

Q. B. 365, 368, referring to the duty of the court in construing an act: " Our first business, I conceive, is to examine the words themselves which are used; and if in these there be no ambiguity it is seldom desirable to go further."

" It is better always to adhere to a plain common sense interpretation of the words of a statute than to apply to them refined and technical rules of grammatical construction:" Gyger's Est., 65 Pa. 311, 312, Sharswood, J.

It has been held that the rule of construction which is called the ejusdem generis doctrine, or sometimes the doctrine of noscitur a sociis, is one which ought to be applied with great caution; because it implies a departure from the natural meaning of words in order to give them a meaning which may or may not be the intention of the legislature: Smelting Company v. Inland Revenue Commissioners, 66 L. J.

Q. B. 137, 140.

In Salomon v. Salomon, 66 L. J. Ch. 35, 44, the court said: " 'Intention of the legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication."

It was further claimed that if the act of 1878 did not include the offense the indictment must rest upon sec. 107 of the Act of March 31, 1860, P. L. 382, which enacts that " if any clerk, servant, or other person in the employ of any other, shall by virtue of such employment receive and take into his possession any chattel, money, or valuable security, which is or may be the subject of larceny, for or in the name or on account of his master, or employer, and shall fraudulently embezzle the same or any part thereof, every such offended shall be deemed to have feloniously stolen the same from his master or employer; " and that the period of limitation provided by sec. 77 of the procedure Act of March 31, 1860, P. L. 427, applicable to the case is two years next after the misdemeanor was committed.

It is provided, however, in this latter act that indictments for misdemeanors committed by any officer of a bank, or other corporation, may be commenced and prosecuted at any time within six years from the time the alleged offense shall have been committed.

" When an act is expressed in clear and precise terms, when the sense is manifest and leads to nothing absurd, there can be no reason to refuse the sense which it naturally presents. To go elsewhere in search of conjecture in order to restrain or extinguish it, is to endeavor to elude it:" Jackson v. Lewis, 17 John. 475, 477.

Neither is it true as it has been sometimes put, that the court, in the exposition of penal statutes are to narrow the construction. " We are to look to the words in the first instance," said Buller, J., in R. v. Hodnett, 1 T.R. 96, " and where they are plain, we are to decide on them. If they be doubtful, we have then to have recourse to the subject-matter."

In construing penal statutes, we must not, by refining, defeat the obvious intention of the legislature: Potter's Dwarris on Statutes, 247.

While every provision affecting a criminal offense involving liberty is subject to the strictest interpretation, this principle is not to be so applied as to narrow the words of a statute to the exclusion of cases which those words in their ordinary acceptance, or in that sense in which the legislature has obviously used them, would comprehend: Potter's Dwarris on Statutes, 964.

In U.S. v. Goldenberg, 168 U.S. 95, 102, it was said: " The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator.

" It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.

" In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon's case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief:" In re Mayfair Property Co., 67 L. J. Ch. 337, 340.

Section 1 of the Act of June 12, 1878, P. L. 196, supra, is a transcript of sec. 110 of the Act of March 31, 1860, P. L. 382, which was in turn sec. 4 of the Act of April 15, 1858, P. L. 270. This clause of the act of 1858 reads: " If any person being an officer, director or member of any body corporate or public company, shall fraudulently take, convert, or apply to his own use, or the use of any other person, any of the money or other property of such body corporate or public company he shall be guilty of a misdemeanor."

Section 116 of the act of 1860 extends the act to " any bank."

In 1876, it was decided that the provisions of the act of 1860 did not include a school district, as it is only a quasi corporation: Com. v. Beamish, 81 Pa. 389.

In the act of 1878, there was added the words " superintendent, manager, receiver, employee, agent, attorney, broker," -- " member of any bank or other body corporate or public company," and " municipal or quasi municipal corporation."

While " any body corporate" used in the act of 1858, may be comprehensive enough to include a public company, to hold that the words " any body corporate or public company" describe only a " public company" is to strike from the statute the words " any body corporate" as surplusage and decide that the legislature did not intend to employ terms as broad as it used.

The subsequent legislation extended the provisions of the act to other subjects, and there is no indication of an intention to limit or restrict the scope of the original enactment.

Defendant was an employee of a body corporate within the purview of the act of June 13, 1878; and the indictment was commenced and prosecuted within the statutory period.

The motion in arrest of judgment is overruled.

Errors assigned were in refusing binding instructions for defendant; in refusing arrest of judgment; in finding that the defendant was an employee of a body corporate within the meaning of the act of June 13, 1878; and that the indictment was commenced and prosecuted within the statutory period.

Reversed.

Henry M. Stevenson, with him B. I. De Young and Maxwell Stevenson, for appellant. -- The defendant could not be properly convicted and sentenced upon the indictment, under the provisions of the act of June 12, 1878: Com. v. Fox, 10 Phila. 204; Com. v. Witman, 217 Pa. 411; Com. v. DeCamp, 177 Pa. 112; Com. v. Baldwin, 5 Pa. C.C. 509; Keystone Surgical Supply Mfg. Co. v. Bate, 187 Pa. 460; Milford Boro. v. Milford Water Co., 124 Pa. 610; Butler's App., 73 Pa. 448; Allen's App., 81* Pa. 302; Pardee's App., 100 Pa. 408; Renick v. Boyd, 99 Pa. 555; Monongahela Bridge Co. v. Ry. Co., 114 Pa. 478; Kime v. Crider, 6 Pa. Dist. 688; Com. v. Wetherill, 8 Pa. Dist. 653; Beechwood Imp. Co.'s App., 12 Pa. Dist. 430; Com. v. Mansfield, 12 Pa. Dist. 103; Com. v. Hill, 2 Pearson, 432.

As the act of June 12, 1878, both increases the penalty in making the...