Commonwealth v. Shoener

• Decision Date: 28 July 1904
• Docket Number: 47-1904
• Citation: 25 Pa.Super. 526
• Parties: Commonwealth v. Shoener, Appellant
• Court: Pennsylvania Superior Court

25 Pa.Super. 526

Commonwealth v. Shoener, Appellant

No. 47-1904

Superior Court of Pennsylvania

July 28, 1904

Argued April 12, 1904 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of Q. S. Schuylkill Co.-1903, No. 175, on verdict of guilty in case of Commonwealth v. John T. Shoener.

Indictment for embezzlement. Before Marr, J.

At the trial defendant's counsel made the following motion:

Mr. Reilly: I will make a motion. Counsel for defendant, in view of the fact that the indictment under which the defendant is about to be tried contains three separate and distinct offenses, alleged in the indictment to have been committed at three separate and distinct times, setting forth the dates and the years in which the said separate offenses were committed, -- the defendant cannot be called upon to answer them in the same indictment, and the court having refused the defendant's petition for a bill of particulars, now asks the district attorney to make election as to what counts under the indictment he will call upon the defendant to answer in this trial.

Mr. Berger: The district attorney declines to elect. The position of the commonwealth is that this embezzlement occurred during his incumbency as clerk of courts, commencing on the first Monday of January, 1900, and that the offenses are properly charged in the bill.

The Court: The motion is overruled under the objection of the district attorney, and as the indictment sets forth that the four offenses that were committed for each year are in accordance with the provisions of the Act of Assembly of March 31, 1860, P. L. 382, and we think it is proper that the indictment should contain each one of those offenses as charged, either jointly or separately, as is done in this case. We therefore sustain the district attorney's objection.

Mr. Kaercher: Our offer now is for the list of license applications for the license years 1901, 1902 and 1903, as produced on call by the clerk of courts.

Mr. Reilly: The offer as to the records for the year 1901 is objected to as incompetent, because barred by the statute of limitations, and is therefore incompetent, immaterial and irrelevant.

The Court: I have looked carefully over this act of 1878, and find that it amends the act of 1860, known as Criminal Code, the 116th, 117th, 118th and 119th sections, in the first place, and that in each one of those sections, where, in the act of 1860, the words " municipal or quasi-municipal corporation" are left out, those words are added in the act of 1878 in the amending of each one of the sections that I have referred to; showing that the intention of the legislature was to extend the act of 1878 so as to embrace not only the officers that are mentioned under those sections in the act of 1860, but to embrace another class of officers, and those were the officers of municipal and quasi-municipal corporations. Then follows section 6, which is the section in controversy here, as to the statute of limitations, and which has been quoted on both sides, and it seems to me that the language there is clear, that it embraces the officers of a municipal and quasi-municipal corporation. I cannot agree with counsel asserting that the words " quasi-municipal corporation" are words of narrowing the sense there to simply words that intended to embrace municipal corporations of every character. Quasi-municipal corporations are those which have been frequently referred to, for instance by the Supreme Court, as our school districts, as quasimunicipal corporations; and after giving the question considerable thought and examination, I feel that section 6 of the act of 1878 embraces the officers of a municipal corporation, and then the question arises, is the county a municipal corporation such as would be designated there? I cannot come to the conclusion that it is not included in the term " municipal corporations." I think it is a general term. I can see no reason why a city or a county shall not be embraced in that term, and we therefore will overrule the objection, admit the evidence, and seal a bill for defendant.

Defendant excepts. Bill sealed.

The county controller was asked these questions:

" Q. Tell us whether you made demand on John T. Shoener, clerk of courts, for the payment by him of this money into the county treasury, and if you have the notice that you served on him, please produce it. A. Yes, sir.

Q. Let us have it."

(Paper produced by witness.)

(Mr. Kaercher calls for the original letter.)

Mr. Reilly: We object to this as immaterial and irrelevant, because he is not the proper official to make demand. The indictment charges a failure to pay over upon demand of the county treasurer, who was the proper party to make demand for the same, and a demand by any other official, who is not the proper, legal, authorized person, is immaterial and irrelevant. The language of the indictment in every one of these counts is -- I think it is uniform, if I recollect right -- " And did fail to pay over the same when thereunto legally required by the county of Schuylkill, through its duly authorized agents, to the treasurer of the county of Schuylkill, he being the proper officer authorized to demand and receive the same." That is the allegation in the indictment. The controller, might, perhaps, have a right, under the controller's act, to demand the settlement or return under the act of 1876, or under the controller's act of 1895, but according to the commonwealth's own showing, there can be no such question here, because they have themselves proved already that the clerk of courts has made these returns monthly, in regular form, upon blanks prescribed by him and sworn to.

Mr. Berger: Our answer to that proposition is that the controller is a fiscal agent of the county, and that it would be mere surplusage at best if it were so described in the bill of indictment or any one of its counts that the treasurer was the proper officer authorized to demand and receive the same. Our position is that the county controller is one of the legal officers to make the demand. We propose also to follow this offer with the case stated in this case, which shows that suit was brought against this defendant, and this also for the purpose of showing demand on the part of the county of Schuylkill.

The Court: Section 4 of the controller's act, amongst other things, makes it the duty of the county controller to immediately upon the discovery of any default or delinquency upon the part of any public officer or any county officer, to report the same to the commissioners and to the court of common pleas of the county; and also to take immediate steps to secure the public moneys and property. The notice to the clerk, the defendant in this case, by the county controller, calls his attention to the fact that he has not made settlement to the county treasurer and that he is asked to do so at once -- not a demand on the part of the controller to pay any money to him, the controller, but demanding the defendant to make settlement with the county treasurer, and we think it was clearly within his duty to make a demand of that kind, and we will admit the evidence.

Defendant excepts. Bill sealed.

Mr. Scarlet: We have a motion to make, but preliminary to that counsel for defendant moves to strike out all testimony relating to moneys received in the years 1900 and 1901, for the reason that any act committed by the defendant during that time was barred by the statute of limitations; and for the further reason that the acts sought to be invoked for an extension of the time for prosecution for an offense which might have been committed in those years is an unconstitutional act, to wit: the act of 1878, it being an amendment to the act of 1860, as so stated in its title, and in plain conflict with the provisions of the constitution, that where there is an amendment to an act of assembly it can only be amended by setting out that portion of the act to which it is amendatory or supplemental; and the act of 1878 does not comply with that provision of the constitution, and is therefore unconstitutional; and further, in that, as my colleague suggests, it introduces new legislation that is not disclosed by its title.

The Court: We think we will overrule your motion.

Defendant excepts. Bill sealed.

The court charged, inter alia, as follows:

[Now the county treasurer is a " proper officer authorized to demand and receive the same," but you must bear in mind that he is not the only proper officer.]

[There has been considerable discussion of a demand in reference to this. I would say to you that I know of no higher demand for payment, under these acts of assembly, than that the county commissioners authorized a suit to be brought against a man for neglecting to pay over money which the county commissioners claim that he has in his charge, and which he has not paid over. It is a demand by law, and I call your attention to that.]

Defendant presented these points:

3. That it is incumbent on the commonwealth to make out, beyond reasonable doubt, all the essential elements of the offense of embezzlement as alleged in the indictment -- to wit: that the defendant received and collected money -- to wit: $ 18,000, which rightfully belonged to the county of Schuylkill, and which he collected for it; that a demand was made upon him by the treasurer of Schuylkill county to pay over to him for the said county the said sum of $ 18,000, and that he refused so to do, and converted it to his own use and that if any of these elements of proof are wanting, to wit: if no demand was made by the treasurer, the jury must acquit. Answer: It is incumbent on the...