Commonwealth v. Shoener

• Decision Date: 12 March 1906
• Docket Number: 211-1905
• Citation: 30 Pa.Super. 321
• Parties: Commonwealth v. Shoener, Appellant
• Court: Pennsylvania Superior Court

30 Pa.Super. 321

Commonwealth v. Shoener, Appellant

No. 211-1905

Superior Court of Pennsylvania

March 12, 1906

Argued December 4, 1905

Appeal by defendant, from judgment of Q. S. Schuylkill Co., Sept Term, 1905, No. 905, on verdict of guilty in case of Commonwealth v. John T. Shoener.

Indictment for embezzlement.

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

Verdict of guilty upon which judgment of sentence was passed.

Errors assigned were in overruling demurrer; various instructions in overruling defendant's plea of autrefois acquit.

Affirmed.

Wm Wilhelm and James B. Reilly, with them Jos. W. Moyer, for appellant.

C. E. Berger, district attorney, and Guy E. Farquhar, with them John F. Whalen, for appellee, cited: Com. v. Mentzer, 162 Pa. 646.

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

OPINION

PORTER, J.

The first specification alleges that the court below erred " in overruling the third paragraph of defendant's demurrer, which paragraph is as follows: That the offense charged in said indictment is barred by the statute of limitations, the same having been found more than two years after the moneys, alleged to have been received by the defendant the which he failed to pay over, came into his hands." The indictment charged in apt language that the defendant had been duly elected and qualified as clerk of the court of quarter sessions of the peace for the county of Schuylkill, and exercised the duties, powers, rights and privileges of said office from the first Monday of January, 1900, until January 5, 1903; and that he had by virtue of his office collected and received from applicants for license to sell liquor in said county fees amounting to the sum of $ 7,234.28 and upwards; for and in the name of and on account of the county of Schuylkill, for safe-keeping and transfer to the treasurer of the said county of Schuylkill; and that F. J. Noonan, the treasurer of said county of Schuylkill, did on June 30, 1905, demand and require him, the said John T. Shoener, to pay over to him, the said treasurer, the said sum of money and the said John T. Shoener did unlawfully fail to pay over the said sum unto the said treasurer when thereunto lawfully required, by said treasurer, he the said F. J. Noonan being the proper officer authorized to demand and receive the same.

The indictment was drawn under the provisions of the 65th section of the Act of March 31, 1860, P. L., 382 which provides that: " If any state, county, township or municipal officer . . . . 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 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, invested, used or unaccounted for, which is hereby declared a misdemeanor." The present Chief Justice construed this section of the statute in Commonwealth v. Mentzer, 162 Pa. 646, and there said: " The section clearly specifies four distinct and separate acts with reference to public money, which shall constitute the offense of embezzlement, to wit: conversion to the officer's own use, investment in property or merchandise, becoming a defaulter, or failing to pay over on proper demand. These are clearly enumerated in the disjunctive, and it is further declared that 'every such act' shall be deemed and adjudged an embezzement. Each of these acts, therefore, though of very varying character and degree of moral turpitude, is of equal legal import, and by itself constitutes the full statutory offense. Prima facie, therefore, each of such acts charged is a separate crime, and where such is the fact no two can be charged in the same count. But . . . . where . . . . two or more of the enumerated acts are in truth only successive steps in one appropriation or embezzlement of the same money, it would be contrary to the fundamental principles of our criminal jurisprudence to hold that they had not merged and become but one offense." This indictment charged the defendant with only one of the acts by the statute made a misdemeanor; the failure to pay over the money when thereunto legally required by the county treasurer, the proper officer authorized to demand and receive the same. This statute did not make it a misdemeanor for a county officer to fail to pay over public money as soon as he received it, nor as soon as it became his official duty to pay it over, under its provisions it is only after the official who has collected the money has been legally required to pay by the county treasurer or other proper officer or person authorized to demand and receive the same, that a failure to make the payment becomes a misdemeanor. That a demand must be made before this offense can be committed; that the demand must be an actual one, and that no constructive demand will meet the requirements of this statute has been definitely settled by the decision of the Supreme Court in Commonwealth v. Shoener, 212 Pa. 527. This indictment averred that the demand by the treasurer was made on June 30, 1905. If the other averments of the indictment were true the defendant was still civilly liable to the county for the money, and the treasurer had the lawful right to make the demand; had the defendant then paid the money he would never, so far as the averments of this indictment are concerned, have been guilty of the offense with which he is now charged. It was only his failure to pay when the demand was made upon him that brought him within the operation of this statute; the right of the commonwealth to prosecute then arose, and from the date of the demand the statute of limitations began to run. The first specification of error is dismissed.

The defendant raised in various forms the question as to when the statute of limitations, as to this offense, began to run, by his first, second, third and fourth written requests for instructions to the jury. These points presented but one question in different forms, and by them the court was requested to instruct the jury; that the Act of March 31 1876, P. L. 13, made it the official duty of the defendant to pay into the county treasury on the first Monday of each month during his term and the first Monday of the month next after the expiration of his term all fees received by him during the preceding month, and that the defendant was required by law to pay the $ 7,243.28 mentioned in the indictment into the county treasury on the first Monday of January, 1903, and if the jury found that he had failed to do so, " the offense of failure to pay over under this indictment was then complete," and it immediately became the duty of the county treasurer to demand payment of said money, and the commonwealth was bound to bring the indictment within two years from the time when the county treasurer could have so legally demanded payment of said money; that the failure of the treasurer to make the demand could not stop the running of the statute of limitations, and that the indictment not having been found within two years the verdict must be not guilty. The fourth point added " that any agreement or stipulation entered into between the county of Schuylkill and the defendant for the purpose of legally determining the legal ownership of said money or any part thereof in a civil proceeding in the courts of the state did not arrest the running of the statute in favor of the defendant, but the statute became a bar to this indictment in two years after the first Monday of January, 1903, when defendant's term of office expired and he failed to pay over." The defendant was not indicted under the provisions of the act of 1876. It cannot be seriously contended that the act of 1876 repealed the 65th section of the act of March 31, 1860. The third section of the act first mentioned does, it is true, provide penalties for violation of some of its provisions, but it expressly provides that such penalties shall be " in addition to the other penalties for such offenses." We must, for the reason so clearly stated by Mr. Justice Brown, in Commonwealth v. Shoener, 212 Pa. 527, hold that in order to complete and render liable to indictment the crime with which this defendant stands charged, there must be an actual demand made upon him by a proper officer, and " a failure to pay that which, at the time the demand is made, clearly belongs to the county making the demand." The offense had no existence until after a lawful demand, within the meaning of the statute, was made, and from the date of that demand the statute of limitations began to run. Had the defendant produced evidence that some officer...