Huntzinger v. Commonwealth

• Court: Pennsylvania Supreme Court
• Writing for the Court: Trunkey
• Citation: Huntzinger v. Commonwealth, 97 Pa. 336 (Pa. 1881)
• Decision Date: 28 March 1881
• Parties: Huntzinger <I>versus</I> Commonwealth.

97 Pa. 336

Huntzinger versus Commonwealth.

Supreme Court of Pennsylvania.

March 4, 1881.

March 28, 1881.

March 4th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Quarter Sessions of Berks county: Of January Term 1880, No. 108.

COPYRIGHT MATERIAL OMITTED

George F. Baer (with whom were G. E. Farquahar and F. W. Hughes), for the plaintiffs in error.—The Act of March 31st 1860, sect. 179, Purd. Dig. 371, pl. 299, is the act by virtue of which the court assumed to enter judgment and sentence for restitution. It is the only act on the subject and provides as follows:—

"On all convictions for robbery, burglary or larceny of any goods, chattels or other property, made the subject of larceny by the laws of this Commonwealth, or for otherwise unlawfully and fraudulently taking or obtaining the same, or of receiving such goods, chattels or other property, knowing the same to be stolen, the defendant shall, in addition to the punishment heretofore prescribed for such offences, be adjudged to restore to the owner the property taken, or to pay the value of the same, or so much thereof as may not be restored. And on all convictions on any indictment for forgery, for uttering, publishing or passing any forged or counterfeit coin, bank-notes, check or writing, or any indictment for fraudulently, by means of false tokens or pretences, or otherwise, cheating and defrauding another of his goods, chattels or other property, the defendant, in addition to the punishment hereinbefore prescribed for such offences, shall be adjudged to make similar restitution, or other compensation, as in case of larceny, to the person defrauded: Provided, That nothing herein shall be so construed as to prevent the party aggrieved, and to whom restitution is to be awarded, from being a competent witness on the trial of the offender."

The commissioners to revise the penal code say, p. 37: "This section is the consolidation, revision and extension of the various Acts of Assembly providing for the restitution of property feloniously or unlawfully taken from the rightful owner. Restitution in cases of forgery, counterfeiting, fraudulent uttering and publishing counterfeit coin or bank-notes, and cheating by false pretences, are additions to existing laws."

We contend that this statute does not authorize a sentence of restitution upon a conviction on an indictment for conspiracy. Conspiracy is not mentioned in the recital or definition of crimes mentioned. Being a highly penal statute it must be construed strictly. It was designed to cover larceny and similar crimes where the gist of the offence is the unlawful taking of another's goods. Conspiracy is a radically different crime — being the unlawful combination and agreement of two or more persons to do an unlawful (or a lawful) act. The offence is complete even though no act be done in pursuance of the conspiracy: Sharswood's Blackstone Com., book 4, p. 136. The indictment in this case charges the technical statutory offence of conspiracy only, it does not charge a pursuant act, in fraudulently taking the money of the prosecutor. The prosecutor is left to his civil action to redress the private wrong if his money was actually taken. Restitution cannot apply where the indictment does not charge the taking of goods. If it did, how is the amount to be liquidated? The verdict was "guilty in manner and form as they stand indicted," i. e., guilty of an unlawful combination — not guilty of unlawful taking. The Constitution declares an accused cannot be deprived of property unless by the judgment of his peers. No power to fix the value exists by law in the judge. In a civil case the amount could be fixed by a jury.

A. W. Schalck, District Attorney for Schuylkill county (with him William N. Goodman, District Attorney for Berks county, William B. Mann, Lin Bartholomew, Francis W. Bechtel, H. C. G. Reber, Daniel and James Ermentrout), for the Commonwealth.— It was perfectly proper to charge in the indictment both the conspiracy and its execution, for it was all one transaction. One charge will often include another, as robbery includes assault and battery, and also larceny.

[TRUNKEY, J. — Where does the indictment charge that the defendant actually got the money?]

The first count of the indictment was intended to charge an executed conspiracy, and it was so treated by the court and the counsel on both sides. Although the language is not very strong it may well be so construed.

The Act of 1860 was a sweeping consolidation of the criminal law. The language is very broad, and was intended to provide for restitution in all cases where the defendant had obtained property by cheating, embezzlement, conspiracy, &c. The act provides that judgment of restitution shall be "in addition to the punishment heretofore prescribed." Where the testimony shows the value of the goods, or where the case involves a definite sum of money named in the indictment and established by the evidence, there is no difficulty in the court fixing the amount to be restored.

Mr. Justice TRUNKEY delivered the opinion of the court, March 28th 1881.

The indictment charges that Jacob Huntzinger, president, and J. Albert Huntzinger, cashier of the ...