Commonwealth v. Shoener

25 Pa. Super. 526, 1904 Pa. Super. LEXIS 107

• Court: Superior Court of Pennsylvania
• Decided: July 28, 1904
• Docket: Appeal, No.47
• Status: Published

Opinion

Opinion by

Porter, J.,

The appellant was duly elected and qualified as clerk of courts of the county of Schuylkill,' and served as such from the first Monday of January, 1900, to the first Monday of January, 1903. He was indicted under the provisions of the 65th section of the Act of March 31, 1860, P. L. 382, relating to émbezzlement by state, county, township or municipal officers. The indictment contained thirteen counts, each count respectively charging the defendant with one of the acts which under the statute constituted the offense. The jury found a verdict of guilty as to the fourth', eighth and twelfth counts, and as to the other counts the defendant was acquitted. The fourth count charged the defendant with having, on January 7, 1901, by virtue of his office, received, collected and taken into his possession “certain public moneys for fees on liquor license applications to a large amount, to wit, five thousand three hundred and eighty dollars, lawful money of the United States, for and in the name and on account of the county of Schuylkill, and having so collected, received and taken into his possession for safe-keeping and transfer, as aforesaid, did fail to pay over the same, when thereunto legally required by the county of Schuylkill or its legally authorized officers, to the treasurer of the county of Schuylkill, he being the proper officer authorized to demand and receive the same.” The eighth count charged the commission of a like offense in the same language on January 6, 1902, the amount of money which the defendant failed to pay over in this instance being alleged to be $6,565. The twelfth count used the same language in charging a like offense to have been committed on January 5, 1903, the amount of money involved in this transaction being alleged to be $6,300. These several sums of money which the defendant was charged with having unlawfully withheld from the county treasury were the amounts which he had received as fees on liquor license applications during the month of December in. the years 1900, 1901 and 1902 respectively, and which it was his duty to-pay into the treasury of the county on the first Monday of the following month. The indictment was found on November 14, 1903. The learned judge of the court below declined to sentence the defendant on the fourth count. The defendant was sentenced on the eighth and twelfth counts of the indictment, “ to pay the costs of prosecution; pay a fine equal to the amount of money embezzled, and pay over to the county of Schuylkill all moneys embezzled, less such amounts as he may already have paid over, and undergo an imprisonment in the Schuylkill county jail, at separate or solitary confinement at hard labor, for a period of three years.”

The indictment was found on November 14, 1903, the defendant had ample time to ascertain whether it fully informed him as to the offense with which he was charged, and it was incumbent upon him to move with reasonable promptness if he desired additional information. He did nothing until the case was called for trial, but then demanded a bill of particulars, which the court refused to order the commonwealth to furnish. An application for a bill of particulars is an appeal to the sound discretion of the court; the defendant is not entitled to it as of right, and an assignment of error relating to a refusal to order a bill of particulars will only be regarded when it appears that the action of the' court below involves an abuse of discretion : Commonwealth v. Buccieri, 153 Pa. 535; Commonwealth v. Zuern, 16 Pa. Superior Ct. 588; Commonwealth v. Johnston, 19 Pa. Superior Ct. 241; Commonwealth v. Powell, 23 Pa. Superior Ct. 370. The first specification of error is dismissed.

The defendant moved to quash the indictment upon the ground that the indictment alleged the money withheld from the county treasury to be “ fees on liquor license applications, which under the act of July 30, 1897, were paid for expenses connected with the several applications, and therefore no such offense as is contemplated by the act of assembly set forth in the indictment; ” and because “ under the act of July 30,1897, under which said moneys were received the defendant was lawfully entitled and required to collect and' receive the same.” This was an attempt to raise a question of law, which upon an appeal by this same defendant in a civil action had already been determined against his contention by the court of last resort: Schuylkill County v. Shoener, 205 Pa. 592; the defendant may not have been satisfied with the decision of the Supreme Court but be had no right to ask the court of quarter sessions to reverse it. The second specification of error is without merit.

The third specification of error is irregular. “ Third. The court erred in overruling the demurrer filed by the defendant to the indictment (see appendix, page 19).” Referring to page nineteen of the appendix, we find there printed the motion to quash, followed by a running conversation between court and counsel, in which counsel for defendant asks for time in which to prepare a demurrer, and then without waiting for the court’s reply suggests that anticipating the court would overrule the demurrer, if the court would let the record show they had filed the demurrer it would answer their purpose. The court thereupon said: “We will consider the demurrer filed before the the jury is impaneled and sworn.” Whereupon counsel for the defendant said: “ The reasons will be substantially, perhaps, a little more elaborately set forth in the demurrer than they were in the motion to quash.” The report of further conversation between court and counsel extends over two printed pages following, but the only additional grounds of demurrer stated were that the indictment was defective “ because of duplicity,” the ground for this objection being that “ this indictment contains thirteen counts, and it undertakes to charge this defendant with the misappropriation of moneys received by him as a public official for three different years.” This is all that appears in the record to which we have been referred. This assignment might be quashed: Cessna’s Estate, 192 Pa. 114. When the record is returned to the court below, nothing will remain in this court to indicate the grounds upon which this demurrer was based; those grounds ought to have been made to appear in the assignment of error. The same objection is made to the indictment under other assignments of error, and might as well be disposed.of here. This complaint against the indictment was not attempted to be sustained upon the ground that any one count of the indictment charged more than one distinct offense or more than one defendant. The objection is, not that two offenses are blended- in the same count, but that the indictment contains separate and distinct counts charging separate and distinct offenses; that the defendant is charged in three different counts with failing to pay over the money received as fees on license applications in three different years. The indictment contained three series of counts, each series relating to the fees on liquor license applications in one of the three years of defendant’s incumbency of office. The separate counts in each series charged as distinct offenses an’act designated by the statute as constituting the offense ; any one of said acts constitutes the crime, but when all concur they make but one complete offense : Commonwealth v. Mentzer, 162 Pa. 646. The indictment did therefore charge this defendant with having on three separate occasions violated the same statute, the offenses charged being misdemeanors. “ It is well settled that it cannot be objected in error, or on demurrer or in arrest of judgment that two or more offenses of the same nature .on which the same or similar judgments may be given are contained in different counts of the same indictment: ” Commonwealth v. Gouger, 21 Pa. Superior Ct. 217 ; Commonwealth v. Gillespie, 7 S. & R. 469; Henwood v. Commonwealth, 52 Pa. 424. The third specification of error is overruled.

The argument on behalf of the appellant that the information upon which the prosecution was based did not apply to and cover the accounts of the appellant for the years 1901 and 1902 is not well founded. The information charged in proper form that the defendant had failed to pay over the fees received by him for filing applications for liquor licenses and for transfers of liquor licenses, and sundry other fees, all amounting to the sum of $5,000 and upwards. The amount unlawfully withheld by the defendant was stated to be over $5,000. While the charge would have been sustained by proof of embezzlement of less than $5,000, the commonwealth was not limited to that amount in its proofs. The testimony necessary to a conviction upon each and every count of the indictment would have been material and competent in the investigation of the charge against the defendant stated in the information. The evidence as -to the fees on license applications received by the defendant in the years 1902 and 1908 would have been admissible at the investigation of the charge stated in the information, and it was competent and material in a trial upon the eighth and twelfth counts of the indictment. The evidence as to the course pursued by the defendant with regard to the fees received upon applications for licenses in 1901 was competent and material, as showing how the defendant had dealt with the same subject-matter during his term of office. This testimony would have been competent if the trial had been strictly limited to the eighth and twelfth counts of the indictment, for the following reasons : The defendant had in his monthly returns to the county controller stated that he had received a certain amount of money as fees for license applications during the month of December, 1900, and that he held this money subject to judicial determination, which statement was carried through all his subsequent monthly returns down to January, 1903. This money ought under the law to have been paid into the county treasury on the first Monday of January, 1901. The county, on November 20,1901, brought an action against the defendant for the recovery of the money, which in his return he had admitted that he had received. The defendant and the representatives of the county-agreed upon a case stated, the contention being that under the provisions of the Act of July 30, 1897, P. L. 464, he, the defendant, had a right to retain the fees -which he had received on applications for license to sell liquor, he, the defendant, paying all expenses for services rendered, advertisements, etc., incidental thereto, and “ had the right to retain the balance as his special fee in addition to his salary under the act of 1876 and its provisions.” The court of common pleas entered judgment in favor of the county and against the defendant upon the case stated in the sum of $5,380, on December 22, 1902. The defendant appealed and, on May 4, 1903, the judgment of the court of common pleas was affirmed by the Supreme Court. The defendant in January, 1902, admitted in his official return that he had received a certain sum of money as fees upon applications for license to sell liquor, and again stated that he held this for judicial determination and this statement was repeated in all his subsequent monthly returns. Again the defendant in January, 1903, made the same return as to the amount which he had received as fees upon license applications during the month of December, 1902. His official returns and his declarations had all the time been that he was holding these various sums of money subject to judicial determination. He paid none of them when the question was decided by the court of common pleas, he paid none of them when that judgment was affirmed by the Supreme Court of the state; he never has paid any of them. This case was tried in the court below on January 4, 1904, and the defendant again set up his right to hold this money, under the provisions of the act of 1897, making it the basis of his motion to quash the indictment. He, through his counsel, insisted that he was retaining this money under a bona fide claim of right, and he comes into this court upon appeal and practically asserts that because he has peculiar views of the law he should be permitted to go free. We have it deliberately stated that one of the questions involved in this case is: “ Whether an adverse decision of the Supreme Court on a civil liability, converts what was believed to be an honest right on the part'of an officer into a crime.” The decision of the Supreme Court did not change the law, the money in question never had belonged to the defendant, from the time it touched his fingers it was the property of the county of Schuylkill. The ownership of that money was a question of law; if the defendant made a mistake with regard thereto, his mistake was one. of law and would not relieve him from responsibility. The defendant had declared in his official returns that he held the license fees for 1901 and 1902 subject to judicial determination, the assertion of that claim was a fact which came into the case through those official returns, and the defendant was there in court asserting his freedom from responsibility because he had retained money in good faith, awaiting a judicial determination. It would therefore have been proper for the commonwealth upon a trial on any. one count of this indictment to show that the defendant had in dealing with this same subject-matter asserted the right to withhold money from the public treasury for the same reason, and that then when the question was judicially determined by the court of last resort he had still failed to pay over. This would have been competent evidence upon the trial on any one of the counts of this indictment, for the 'pru'pose .of showing that the defendant’s declaration that he was holding the money subject to judicial determination was not made in good faith. The defense was not embarrassed or deprived of any right because of the refusal of ■the court to require the district attorney to elect upon Avhich counts of the indictment the commonwealth would proceed to trial: Commonwealth v. Gillespie, 7 S. & R. 469; Harman v. Commonwealth, 12 S. & R. 68 ; Henwood v. Commonwealth, 52 Pa. 424. The fourth, fifth and seventh assignments of error are not well founded.

That the county of Schuylkill, was, during the defendant’s term of office, subject to the provisions of the Act of June 27, 1895, P. L. 403, creating the office of county controller in counties containing 150,000 inhabitants and over, is conceded upon all hands. The commonwealth offered in evidence a .written demand which the county controller had, on December 30, 1902, served upon the defendant, requiring the latter to pay all license fees then in his possession to the county treasurer, on or before December 31, 1902, and notifying him that in case of his failure to comply with this demand, the controller would institute proceedings both civil and. criminal against him. The defendant objected to the admission of this evidence upon the ground that the controller was not the proper official to make the demand required by the statute. The admission of the paper in evidence is the subject of the sixth specification of error. Whether the controller was an officer authorized to require the defendant to pay over the money, under the provisions of the statute, is the only question of any merit raised by the request of the defendant that the court direct a verdict of not guilty, the refusal of which is the foundation of the eighth specification of error. These specifications must stand or fall together. The burden was upon the commonwealth to prove that the defendant had by virtue of his office received public money and that he did “ fail to pay over the same when thereunto legally required by the county treasurer, or other proper officer or person authorized to demand and receive the same.” This is the language of the act of 1860 under which the defendant was convicted. The statute did not make the criminal liability of a defaulting officer dependent upon a demand by the county treasurer. The language is broad enough to cover any form of county organization then in existence or which might afterwards be created, under which one or more officers or persons are legally vested with authority to require an officer to pay over the public money when the occasion arises. The property in such moneys is in the county. The county necessarily acts through officers or agents whose duties and authority are defined by statutes. If the money is not the property of the county, or if the time when it should be paid over has not arrived, he cannot be legally required to pay over. When he has received the money and the time has arrived when it should be paid over he may be legally required to pay it over by any officer who is bylaw vested-with authority to demand that he shall do so. He must be legally liable, and required to pay, by an officer or person upon whom the law has imposed that duty or conferred that authority. The fourth section of the Act of June 27,1895, P. L. 403, enacts : “ The said controller shall have a general supervision and control of the fiscal affairs of the county and of the accounts and official acts of all officers or other persons who shall collect, receive or distribute public moneys of the county, or who shall be charged with the management or custody thereof, and he may at any time require from any of them in writing, an account of all moneys or property which may have come into their control, and he shall immediately on discovery of any default or delinquency report the same to the commissioners and the court of common pleas of the county and shall take immediate measures to secure the public moneys or property, and remove the delinquent party if in office and not removed by the commissioners.” This clearly makes it the duty of the controller to require all officers who receive public money, of the county, to pay over the same at the time and in the manner pointed out by the law. He must, immediately upon the discovery of a delinquency, take measures to secure the public moneys or property. He not only has authority, but with regard to the disposition of the public moneys, the law imposes upon him the duty to avail himself of every legal remedy to enforce the payment of the money due to the public treasury. The county treasurer is the mere custodian of the money, when it has been determined that there is an amount due from an officer the treasurer may demand it, but it is in the first instance the duty of the controller to ascertain the amount to be paid and he unquestionably is authorized to demand that it be paid to the treasurer, or to the other officer designated by law to receive it. The sixth and eighth specifications of error are dismissed, and the tenth, eleventh and twelfth which involve the same questions must be disposed of in like manner.

There was no error in the exclusion of the evidence of the declarations of the defendant to his counsel, made long after the indictment was found, and in the absence of any representative of the commonwealth, and the ninth specification of error is dismissed. The case was fairly submitted to the jury, and the allegation that the court gave undue prominence to the evidence for the commonwealth and minimized and belittled the case of the defendant is not well founded. It is not necessary to discuss the effect of the sixth section of the Act of June 12,1878, P. L. 196, upon the limitation of time within which prosecutions against county officers must be commenced. The defendant was not sentenced on any count of the indictment in which that question was involved.

The complaint that the counts in the indictment upon which the defendant was found guilty were informal, in that they charged that the defendant had failed to pay over the money, “ when thereunto legally required by the county of Schuylkill, or its legally authorized officers, to the treasurer of the county of Schuylkill, he being the proper officer authorized to demand and receive the same,” comes too late. The defect, if there was one, was purely formal, and could only have been taken advantage of by demurrer or motion to quash : Commonwealth v. Barge, 11 Pa. Superior Ct. 164. The language used clearly indicated that duly authorized officers had legally required the defendant to pay over the public money; it could not reasonably be construed to mean anything else. If officers who were duly authorized to do so legally required the defendant to pay over, the demands of the statute were met.

The fifteenth specification of error must be sustained. There was but a single sentence imposed, although the judgment referred to two counts of the indictment. When the several penalties which attach to different counts of an indictment are to be cumulated, separate sentences must be imposed on each count. If there is one count in an indictment which will sustain the sentence, the judgment will not be reversed: Commonwealth v. Church, 17 Pa. Superior Ct. 39; Commonwealth v. Bradley, 16 Pa. Superior Ct. 561; Hazen v. Commonwealth, 23 Pa. 355 ; Harman v. Commonwealth, 12 S. & R. 68; Hen-wood v. Commonwealth, 52 Pa. 424. The sentence of imprisonment for the period of three years can be sustained under either the eighth or twelfth counts, but the remainder of the sentence is erroneous. The court had authority to impose a fine equal to the amount of the money embezzled, but it had no authority to delegate its power to the sheriff or any officer. The statute did not warrant the imposition of a fine in such a manner as to leave the amount thereof to be determined by any matter outside the record, the fine must be for a definite sum, the legislative intention manifestly was that it should be equal to the amount embezzled, but that amount must be determined from the record and by the court in its sentence. It must of course be conceded that if the fine imposed is less than the amount embezzled the defendant would not be injured by the variance. The limit of a single fine which the court had authority- to impose in this case was $6,565, the amount which the defendant was found to have embezzled under the conviction upon the eighth count. The court had no jurisdiction to sentence the defendant to pay. over to the county of Schuylkill all moneys embezzled, less such amounts as he may already have paid over; the county must collect its money in another tribunal. The court in imposing the sentence was limited to the punishment prescribed by the terms of the violated statute: Krœmer v. Commonwealth, 8 Binn. 577; Scott v. Commonwealth, 6 S. & R. 224; Commonwealth v. Barge, supra. The error however does not require anything further than the reversal of sentence which will have no effect on the trial and conviction. The case will be sent back for another sentence.

It is ordered that the sentence of the court of quarter sessions in this case be reversed; and that the record be remitted to said court with a procedendo to proceed and sentence the prisoner afresh in due order and according to law; and it is ordered that the defendant appear in the court of quarter sessions of Schuylkill county and abide the further order of said court.