Commonwealth v. Levi

• Decision Date: 10 October 1910
• Docket Number: 16-1910
• Citation: 44 Pa.Super. 253
• Parties: Commonwealth v. Levi, Appellant
• Court: Pennsylvania Superior Court

44 Pa.Super. 253

Commonwealth v. Levi, Appellant

No. 16-1910

Superior Court of Pennsylvania

October 10, 1910

Argued April 18, 1910 [Syllabus Matter]

Appeal by defendant, from judgment of Q. S. Dec. Sessions, 1909, No 44, on verdict of guilty in case of Commonwealth v. David L Levi.

Indictment for embezzlement. Before Hart, P. J.

From the record it appeared that the defendant, David L. Levi, was the son and executor of Michael Levi who died on April 9, 1906, a resident of Williamsport. The testator owned a clothing business in Williamsport, which the defendant continued as executor. It was in connection with the winding up of this business that the transactions occurred for which he was indicted. During the progress of the trial there were various rulings on evidence and instructions the substance of which are stated in the opinion of the Superior Court.

Verdict of guilty, on which the defendant was sentenced to pay a fine of $ 500, and undergo imprisonment in the county jail for one year.

Errors assigned were various rulings and instructions.

Max L. Mitchell, for appellant. -- The provisions of the fourteenth amendment in regard to equal protection of the laws secures " Exemption from any greater burdens and charges than such as are equally imposed upon all others under like circumstances:" Barbier v. Connolly, 113 U.S. 27 (5 S.Ct. 357); Marchant v. Penna. Railroad Co., 153 U.S. 380 (14 S.Ct. 894).

The proceedings in the orphans' court were not evidence: Moses v. Bradley, 3 Whart. 272; Hutchinson v. Bank, 41 Pa. 42; Morch v. Raubitschek, 159 Pa. 559; State v. Bradneck, 37 A. 492.

Herbert T. Ames, with him Ira F. Smith, A. R. Jackson, Candor & Munson, Thos. A. Hammond, of Ames & Hammond and M. C. Rhone, for appellee. -- Due process of law and equal protection of the laws are secured, if the laws operate on all alike and do not subject the individual to an arbitrary exercise of the powers of government: Duncan v. State of Missouri, 152 U.S. 377 (14 S.Ct. 570); Lowe v. State of Kansas, 163 U.S. 81 (16 S.Ct. 1031); Tinsley v. Anderson, 171 U.S. 101 (18 S.Ct. 805).

The proceedings of the orphans' court were admissible: Com. v. Kaufman, 9 Pa.Super. 310; Com. v. Beale, 19 Pa.Super. 434; Com. v. King, 35 Pa.Super. 454; Aitkin v. Young, 12 Pa. 15; Coursin v. Ins. Co., 46 Pa. 323; Woodward v. Garey, 42 Legal Int. 490.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

PORTER, J.

The defendant was indicted for and convicted of the crime of fraudulent embezzlement, as executor of the will of Michael Levi, deceased. The defendant moved to quash the indictment upon the ground that it had not been found within two years after the commission of the alleged offense and, in support of this motion, contended that the Act of May 23, 1889, P. L. 48, which increased to five years the statutory period within which an indictment for the offense here charged may be found, is in contravention of that portion of the fourteenth amendment of the constitution of the United States which provides that no state shall deny to any person the equal protection of the law. The court below overruled this motion to quash, which action is the subject of the first specification of error. Counsel for the appellant argues that the period of limitation within which the crime of embezzlement by all trustees must be prosecuted was, prior to the act of 1889, two years; that the act of 1889 extended to five years the period of limitation within which executors and certain other classes of trustees might be prosecuted for fraudulent embezzlement, while it left the limitation as to certain other trustees remain, as formerly, two years, and that this distinction comes within the prohibition of the fourteenth amendment, and denies to all executors the equal protection of the law. The indictment is founded upon sec. 113 of the Act of March 31, 1860, P. L. 382, defining and providing for the punishment of fraudulent embezzlement by trustees. The word " trustee," as used in sec. 113 of the act of 1860, is given a well-defined meaning by sec. 124 of the same statute, viz.: " The word 'trustee' herein shall mean a trustee on some express trust created by deed, will or instrument in writing, and shall also include the heir, devisee and personal representative of any such trustee, and all executors, administrators and assignees." The meaning of the word " trustee," as used and defined in the sections above referred to was, by the Act of April 22, 1863, P. L. 531, extended to " include any guardian or guardians of a minor child or children appointed by the orphans' court of the respective counties in the same manner as executors, administrators and assignees." The limitation within which the crime of fraudulent embezzlement by executors and all the other classes of trustees embraced by the legislation above referred to was, by sec. 77 of the Act of March 31, 1860, P. L. 427, fixed at two years. The Act of April 23, 1889, P. L. 48, provided, " That all indictments for embezzlement by administrators, executors, guardians and trustees may be brought or exhibited at any time within five years, from the final decree of the court adjudicating the final accounts of the said trustee." The argument of counsel for appellant is that because the word " assignees" had been used, in sec. 124 of the act of 1860, in defining the classes which come within the meaning of the word " trustee," as used in sec. 113 of the same statute, and the word " assignees" is not again used in the act of 1889 fixing at five years the limitation for prosecutions for embezzlement; that, therefore, the limitation within which prosecutions for embezzlement by assignees must be brought remains two years and that this distinction involves, as to executors and the other classes of trustees within the operation of the act of 1889, a denial of the equal protection of the laws.

We do not deem it necessary, in this case, to consider whether the word " trustees," as used in the act of April 23, 1889, is to be held to have the meaning which had been expressly given to it by sec. 124 of the act of March 31, 1860, and so construed as to embrace assignees for the benefit of creditors within the classes of trustees liable to prosecution for embezzlement within five years after the adjudication of their final accounts. If it be assumed that executors are within the provisions of the act of 1889 while assignees for the benefit of creditors are not then, all that the legislation involves is a division of trustees into two classes, one, those who under the law are charged with the administration of the estates of the dead and the guardianship of the property of infants; and the other, those who have charge of property of the living, holding it in trust for creditors, who may be supposed to be competent to look after their own interests and demand a prompt accounting. The fourteenth amendment of the constitution of the United States does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and in the liabilities imposed Class legislation, discriminating against some and favoring others is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the prohibition of the amendment. " Due process of law and the equal protection of the laws are secured if the laws operate on all alike, under like conditions and like circumstances and do not subject the individual to an arbitrary exercise of the powers of government." " The right to equal protection of the laws is not denied by a state court when it is apparent that the same law or course of procedure would be applied to any other person in the state under similar circumstances and conditions:" Duncan v. Missouri, 152 U.S. 377, 38 L.Ed. 485, 14 S.Ct. 570; Marchant v. Pennsylvania Railroad Co., 153 U.S. 380, 38 L.Ed. 751, 14 S.Ct. 894; Barbier v. Connolly, 113 U.S. 27; Tinsley v. Anderson, 171 U.S. 101, and cases cited in Commonwealth v. Emmers, 33 Pa.Super. 151. The first assignment of error is dismissed.

The Act of February 24, 1834, sec. 2, P. L. 73, imposes upon executors the duty of causing an inventory and appraisement of the decedent's estate to be made and " to return the same into the office of the proper registrar." When the conduct of an executor is the subject of judicial investigation it is certainly proper to use the very evidence which the law has expressly required him to furnish and file in a public office showing what property of the estate of the decedent has come into his hands. The inventory and appraisement in this case showed upon its face that it had been made at the request of the defendant and was filed by him, in the office to which he was by law required to return it; it was his act and it was properly admitted as evidence. The second specification of error is without merit.

The act of March 31, 1860, sec. 113, provides that: " If any person, being a trustee of any property for the benefit either wholly or partially, of some other person, or for any public or charitable purpose, shall, with intent to defraud, convert or appropriate the same, or any part thereof, to or for his own use or purpose, or the use or benefit of any other person, or shall, with intent aforesaid otherwise dispose of or destroy such property, or part thereof, he shall be guilty of a misdemeanor." Section 124 of the statute enacts that, " the...