Commonwealth v. Keuhne

Opinion by Porter, J., The defendant was convicted upon an indictment containing three counts, charging distinct acts of embezzlement, all charging the offense in the same language, except as to — 367 — the amount and date of the several items alleged to have been misappropriated. The offense in each count charged was, that the defendant, “being then and there a person in the employ of a certain corporation named and called the -German Daily Gazette Publishing Company, as clerk and servant, did by virtue of his said employment, and while so employed as aforesaid, then and there receive and take into his custody, care and possession, for and in the name and on account of the said corporation . . . ., his employer as aforesaid, certain money, to wit: sixty-five dollars lawful money of the United States,..... of the goods and chattels, moneys and property of the said corporation named, etc., . . . ., then and there being found, and then and there did fraudulently embezzle and then and there feloniously did steal; take and carry away, contrary to the form of the act of the General Assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania.” The indictment was found on November 2, 1908, and in the first count charged the first act of embezzlement to have been committed on May 22, 1905, and the second act to have been “within the space of six calendar months from the time of committing the said felony and embezzlement hereinbefore in the first count of this indictment set forth, charged and stated, to wit: on the third day of July, in the year 1905”; and the third count, using the language above quoted from the second count, charged the date of the act on August 14, 1905. The evidence introduced at the trial in support of the indictment all tended to establish the unlawful appropriation of money, during the year 1905, at about the dates in the indictment charged, and all more than three years prior to the finding of the indictment. The jury having rendered a verdict of guilty as indicted the court sentenced the defendant, and from that judgment we have this appeal. The only specifications of error which merit consideration are those relating to the period of limitation applicable to prosecutions for the offense of which the defendant stands convicted. The indictment charged and the evidence established that the offenses of the defendant, if any, had been committed — 368 — more than three years before the bill was found, and there was no evidence of the absence of the defendant from the state which could operate to prevent the running of the statute of limitations. The first specification of error is based upon the motion of the defendant to quash the indictment, the defendant stating his motion to be based upon the ground, “that the Act of June 12th, 1878, P. L. 196, providing for the punishment of embezzlement by an employee .... or servant of a bank or other body corporate, municipal or quasi-municipal corporation, did not apply to the charge laid in the bill of indictment,” which motion the court overruled. The contention of the defendant in the court below, seems to have been that the second section of the act of June 12, 1878, providing for the punishment of officers, employees, etc., “of any bank or other body corporate, or public company, municipal or quasi-municipal corporation, who shall fraudulently take, convert or apply to his own use, or the use of any other person, any of the money or other property of such bank,” etc., must be construed to apply only to public corporations, in the nature of municipalities. This contention has been persisted in in the argument before this court, and we have it stated as one of the questions involved; “Whether section 1 of the Act of June 12th, 1878, P. L. 196, includes within the meaning of the words 'bank or other body corporate, or public company, municipal or quasi-municipal corporation’ a private corporation of the second class, organized under the Act of April 29th, 1874, P. L. 73, and its amendments.” The question being presented in this manner the court below was led to consider it as only involving the construction to be given to the words “body corporate,” in the first section of the act of 1878. The opinion of Judge Martin, which will appear in the report of this case, reviews the legislation relating to offenses of this character by the officers and employees of banks 'and other corporations, which culminated in the act of 1878, and vindicates his conclusion, that the words “body corporate” used in the first section of that statute must be held to include all corporations. The act of 1878 was a supplement to the Act of March 31,1860, P. L. 382, and in .its first section amended sec. 116 of the — 369 — earlier statute. The Act of April 15, 1858, P. L. 270, sec. 4, had made that a criminal offense which had not previously been such, by enacting: “If any person being an officer, director or member of any body corporate or public company, shall fraudulently take, convert, or apply to his own use, or the use of any other person, any of the money or other property of such body corporate or public company he shall be guilty of a misdemeanor.” This provision was retained by the revisers of the penal code and embodied in sec. 116 of the act of 1860, but the provision was extended so as to include “an officer, director or member of any bank, or other body corporate or public company.” The purpose of this change was manifestly not to narrow the meaning of the words “body corporate,” as used in the act of 1858. The legislative intention was not to exclude from this section corporations which had come within the provisions of the act of 1858, but to extend those provisions so as to make the officers of banks subject to the penalty imposed. It was held in Com. v. Beamish, 81 Pa. 389, that a school district was not a “body corporate” within the meaning of sec. 118 of the act of 1860, which provided that certain acts of officers of any “body corporate” should constitute a misdemeanor; such school districts being only quasi corporations. While the construction of secs. 116, 117 and 119 of the act of 1860 was not, strictly speaking, before the court in that case, it was in the opinion said that those sections clearly did not apply to municipal corporations. And it may here be observed that while sec. 116 of act of 1860 provides for the punishment of offenses by officers of “any bank, or other body corporate or public company,” the subject of embezzlement by “state, county, township or municipal officers” is specifically dealt with in sec. 65 of the act of 1860, within the operation of which the acts of officers of school districts had been held to come: Com. v. Morrisey, 86 Pa. 416. The able argument submitted on behalf of the appellant has failed to convince the majority of the judges who were present at the argument of this appeal that the learned judge of the court below erred as to the construction to be given the act of 1878. — 370 — The period of limitation provided by the act of 1878 within which indictments “for misdemeanors committed by any officer, director, agent, employee, etc., of any bank, body corporate or public company, municipal or quasi-municipal corporation,” must be found is four years. The misdemeanors referred to have all been created by statute, and the indictments in such cases are to be adjudged sufficient when they charge the crime substantially in the language of the act of assembly prohibiting the crime, and prescribing the punishment. This relieves the prosecuting officer, to some extent, from the necessity for technical accuracy in pleading, but an indictment must still inform the defendant of the offense with which he stands charged. The fact that an indictment charges the crime substantially in the language of one statute is sufficient to warrant the trial and sustain a conviction for the offense created by that statute, but it will not warrant a trial for and conviction of an entirely different offense created by some other statute. The indictment in this case, in so far as the description of the character in which he acted is concerned, is drawn in the exact language of sec. 107 of the act of March 31,1860; it avers that he was a person in the employ of another, “as clerk and servant,” and that by virtue of his employment and while so employed, he received in the name and on account of his employer, certain money. We must, however, consider not only the character in which the defendant is charged to have acted, but also the offense with which he is charged, in determining upon what statute the prosecution was founded. This indictment charges that the defendant, having received the money, “did fraudulently embezzle and then and there feloniously did steal, take and carry away,” the same. The offense here charged is a felony, not a misdemeanor, and the second and third counts of the indictment accurately state the offense charged in the first count to be a felony. What statute authorizes the prosecution and punishment of a defendant, upon the facts in this indictment stated, for a felony? The 107th section of the act of 1860 enacts that, if any clerk, servant or other person in the employ of another, shall by virtue of such employment, receive and take into his — 371 — possession any chattel, money or valuable security, which is or may be made the subject of larceny, for or in the name of his employer, “and shall fraudulently embezzle the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master or employer.” This is the very language used in this indictment in describing the wrongful act of which the defendant was charged to be guilty. The offense created by this statute was not a misdemeanor. The wrongful act is the fraudulent embezzlement, the intentional misappropriation of his employer’s money. This section of the statute declared that he who had thus received and misappropriated money should be deemed, in law, to have feloniously stolen the same, “and shall be punished as is provided in cases of larceny of like property.” It is very clear that the offense for which this defendant was indicted was that created by sec. 107 of the act of March 31, 1860, which is a felony. That the statute of limitations for the prosecution of misdemeanors, by officers and employees of corporations, provided by the act of 1878, had no application to this case logically follows. The offense for which the defendant was indicted was not a misdemeanor. The period of limitation for the prosecution for this felony was that fixed by sec. 77 of the Act of March 31,1860, P. L; 427, two years next after such felony was committed. This question was properly raised by the request of the defendant for binding instructions, the refusal of which is the foundation of the thirteenth specification of error. This specification of error must, therefore, be sustained. The judgment is reversed and the defendant is discharged without day.