Commonwealth v. Newcomer

• Decision Date: 12 May 1865
• Citation: 49 Pa. 478
• Parties: The Commonwealth <I>versus</I> Newcomer.
• Court: Pennsylvania Supreme Court

49 Pa. 478

The Commonwealth versus Newcomer.

Supreme Court of Pennsylvania.

May 12, 1865.

ERROR to the Quarter Sessions of Philadelphia.

William B. Mann, District Attorney, with whom were Henry M. Phillips and John P. O'Neill, for the Commonwealth, argued that the limit prescribed by the court below would lessen the usefulness of the enactment and would not be in conformity with the objects of those who originally passed it, and that it was important that there should be a decision on the subject by this court, especially as this word "agent" has been differently construed by judges in various parts of the state.

But a single reason can be plausibly suggested for such restriction noscitur a sociis, its location among words, indicating

pursuits, regularly followed, and not adapted to each particular case; but a single act of conversion of any one of these constitutes the crime, and pari ratione, a single act of embezzlement by an agent — one acting for another — in a fiduciary character, shall be similarly regarded. The word is not novel in our legislation; the insolvent laws have had it since 1836, for the section then passed and re-enacted in the 131st section of the Penal Code of 1860, provides for the punishment of any petitioner who had applied to his own use any money or property with which he had been intrusted as bailee, agent, or depositary, &c. So, too, in sections 130 and 134, it is a crime, under certain circumstances, to act as scrivener, broker, agent, or witness, and the word so often used in the criminal law, should have an uniform interpretation. Throughout the legislation of the state the word is found; appeals from awards of arbitrators, affidavits for writs of error, and many other things are, by law, allowed to be done by agents eo nomine; and it seems a perversion of terms to regard an agency as a permanent business, each employment being separate, and the employed being the party's agent for the particular purpose. There can be no such thing really as a professional agent. The word agent, closely sounding like its primitive agens, is one acting for another. In this section it is intended to enumerate the classes of persons subject to prosecution for flagrant breaches of trust. A banker, a broker, a merchant, an attorney (perhaps an attorney in fact as well as attorney at law), receives property by virtue of his calling, but an agent receiving property for safe custody, should certainly not have immunity for dishonesty, worse generally than in him who has mingled the property of another with his own, and has not afterwards the power to separate it. With the latter the crime may be venial; with the former, never so, as the conversion is always intended and for personal gain. Any one may be an agent, an infant, a married woman, or an alien: Bacon's Abridgment, Authority, B; Hopkins v. Mollineux, 4 Wend. 465. See also 1 Hill (So. Ca.) 270; 14 Ala. 469; Rex v. Hughes, 1 Mood. C. C. 370; Rex v. Hall, 1 Mood. C. C. 474; Rex v. Carr, Russ. & Ryan 198.

The word "agent" was used by this court in the same manner as in the Penal Code, in the case of Wingate v. Mechanics' Bank, 10 Barr 108.

The word "agent" is also similarly defined in Bank of Kentucky v. Schuylkill Bank, 1 Parsons' Select Equity Cases 214. In Saving Fund v. Hagerstown Bank, 12 Casey 503, and in Williams v. Zelty, 7 Casey 461, the difference between "general" and "special" agent is described; but in every case the word agent is recognised as a word of general use, and with a comprehensive meaning.

The offence is well described; the Penal Code requires but little description, though this point is of less importance than the one first presented.

John Goforth, for defendant.—The 114th section of the Penal Code was taken from and is in the words of the 2d section of the Act of 15th April 1858, and not in the words of the title of the Act as given by plaintiff in error. (Rep. of Com. to revise Penal Code, p. 31.)

The authorities cited by plaintiff in error antedate this Act of Assembly, and have neither reference nor analogy to it. In Wingate v. Mechanics' Bank, 10 Barr 108, the bank advertised by a placard posted up in their banking-house, that they would make collections on certain terms. It was a part of their regular business, and authorized by their charter.

This section was meant to refer to persons of particular professions, as bankers, brokers, attorneys, merchants, and agents. Real estate agents, pension agents, bounty agents, collection agents, &c., are professions just as distinct and well known in the community as the banker, broker, attorney, or merchant.

All statutes affecting the liberty of the citizen must be strictly construed.

If, in the 131st section, the word "agent" was meant to be used in the sense contended for by the plaintiff in error, why use the words "either as bailee, agent, or depositary" at all? If the meaning is complete without them, why add that which is merely surplusage? But suppose it to be in the Insolvent Act as contended for by plaintiff in error, that law was meant to reach a simple violated trust. The defendant below was not heard upon a petition in insolvency, and this...