John Shoener v. Commonwealth of Pennsylvania

• Decision Date: 02 December 1907
• Docket Number: No. 161,161
• Citation: 52 L.Ed. 163,207 U.S. 188,28 S.Ct. 110
• Parties: JOHN T. SHOENER, Piff. in Err., v. COMMONWEALTH OF PENNSYLVANIA
• Court: U.S. Supreme Court

207 U.S. 188

28 S.Ct. 110

52 L.Ed. 163

JOHN T. SHOENER, Piff. in Err.,

v COMMONWEALTH OF PENNSYLVANIA.

No. 161.

Argued October 28, 1907.

Decided December 2, 1907.

In a civil action brought by the county of Schuylkill, Pennsylvania, in 1901, against Shoener, the present plaintiff, for the amount of certain fees alleged to have been collected by him, as the clerk of a quarter sessions court, but withheld by him from the county treasurer, a judgment was rendered in favor of the county for $18,245. That judgment was affirmed upon appeal by the supreme court of Pennsylvania on May 4th, 1903. Schuylkill county v. Shoener, 205 Pa. 592, 55 Atl. 791.

Shoener was then proceeded against by indictment under § 65 of the Penal Code of Pennsylvania of 1860, which section is in these words: 'If any state, county, township, or municipal officer of this commonwealth, charged with the collection, safekeeping, transfer, or disbursement of public money, 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, safeckeeping, 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 proper official 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; and every such officer, and every person or persons whomsoever aiding or abetting, or being in any way accessory to said act, and being thereof convicted, shall be sentenced to an imprisonment, by separate or solitary confinement at labor, not exceeding five years, and to pay a fine equal to the amount of money embezzled.' Pa. Laws 1860, p. 385.

This section was construed by the supreme court of Pennsylvania in com. v. Mentzer, 162 Pa. 646, 29 Atl. 720, the court holding that each of the acts enumerated in the statute was a distinct and separate offense, although they might be so entirely parts of the same transaction as to constitute but one offense; that whether particular acts were so combined as to make one offense depended upon the facts in each case, and raised a question of fact for the jury.

The indictment was returned November 14th, 1903,—the date is important,—and contained thirteen counts, those other than the fourth, eighth, and twelfth counts in substance charging the accused with converting public funds to his own use, and the fourth, eighth, and twelfth counts charging him only with failing to pay over the public moneys that came into his hands, when thereunto legally required by the county. The accused was acquitted January 6th, 1904, on all the accounts except the fourth, eighth, and twelfth, and on those accounts he was convicted. On appeal to the superior court the conviction was sustained (25 Pa. Super. Ct. 526), but, on appeal from the court to the supreme court of Pennsylvania, the judgments of conviction in both the lower courts were reversed June 22d, 1905, and the accused was discharged from the recognizance which he had executed. Com v. Shoener, 212 Pa. 527, 61 Atl. 1093.

In the opinion of the supreme court it was stated that the only demand ever made on the accused was in a letter to him from the county comptroller, under date of December 30th, 1902. But that demand, the court said, was made at a time when the question of the right of the accused to retain the moneys he had retained was, by agreement of the county, pending and undecided in the civil court. The court, after observing that it was competent for the county to have entered into such an agreement, said: 'How could any demand have been made at that time that the defendant was bound to heed? . . . The failure to pay on demand, as contemplated by the statute under which he is indicted, is a failure to pay that which, at the time the demand is made, clearly belongs to the county making the demand, and does not apply to a case where demand is made to pay during the pendency of a dispute as to who is entitled to the money, and which dispute, by agreement of both parties to it, is pending determination in the courts. . . . In refusing to pay over at the time the alleged demand was made he did just what any other man similarly situated and with due regard to his rights would have done; and it is a perversion of the 65th section of the act of March 31, 1860, to attempt to apply it to a case like this. The only evidence of a demand to pay over was the [comptroller's] letter. This was written and received by the appellant at a time when the county, by its own agreement, could not have enforced any civil liability against him, and in refusing to comply with the notice to pay he was standing on his right not to do so until it was determined that the county was entitled to receive the money. The learned trial judge charged the jury that the institution of the suit in the common pleas of the county was a legal demand for the payment of the money, and should be regarded as such a demand in the prosecution of the appellant on the counts charging him to pay over on demand. In the civil courts constructive demands may be and are recognized, but not so in a criminal court, in the prosecution for an offense having as one of its statutory ingredients a refusal to pay on demand. A demand there means actual demand. The only actual demand that the commonwealth pretends was made was the comptroller's letter. It was written after the institution of the civil...