Hellings v. Commonwealth

5 Rawle 64, 1835 Pa. LEXIS 8

Opinion

Per Curiam.

The offence here is laid as embezzlement at the common law. Sir "William Blackstone, speaking of misprisions in public trusts and employments, remarks in the fourth volume of his Commentaries p. 121: “Hitherto also may be referred the offence of embezzling the public money, called by the Romans peculatus, which the Julian law punished with death in a magistrate, and with deportation or banishment in a private person. With us it is not a capital crime, but subjects the committer of it to discretionary fine and imprisonment.” He refers to no-authority for the last position; but we find in Moulsworth’s case, Comb. 187, w here an overseer had charged the parish three pounds for putting out an apprentice who was in fact not put out, the expression of an opinion that there might be remedy by indictment; and in Mr. Chitty’s Criminal Law, vol. 3, p. 701, we have two precedents of an indictment for embezzlement at Common Law.

Footnotes

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* Yet it is not a little remarkable that no trace of such an offence is found in Bale or Hawkins, or the more recent English text books. The reason of it may be that the common law prohibition has been superseded in practice by the specific provisions of various statutes to punish the pilfering and stealing, not only of servants and clerks, but officers of the post office and .bank. The civil remedy must in a vast majority of instances be inadequate to the mischief ; but the question here is whether it is not to be resorted to exclusively, by reason of our statutory provision to restrain the courts to specific remedies provided by the legislature. By the eighteenth and nineteenth sections of the act of 1799, the persons and estates of delinquent collectors, are liable to seizure and execution on summary process from the treasurer and commissioners; and the specific remedy thus provided has consequently supplanted the remedy at the Common Law.

Judgment reversed.

See Rex v. Martin, 2 Campb. 268.