Commonwealth v. Shields

Opinion by Rice, P. J., It appears that the defendant, who was sheriff of Westmoreland county, was deputized at divers times by the sheriff of Fayette county to serve certain writs, eight in number, issued out of the court of common pleas of the latter county against residents of the former county; that these writs were returned by the defendant, with certain sums indorsed thereon as “my costs”; that the sums thus charged for his services were paid by checks drawn to his order as sheriff; that these checks were indorsed by his deputy by means of a rubber stamp, “Pay to the order of Safe Deposit and Trust Company, Greensburg, Pa., John E. Shields, Sheriff,” and deposited in bank in an account kept in the name of “John E. Shields, Sheriff”; and that the checks were duly collected and the proceeds credited to that account. It appears further, that the defendant did not account for, nor pay over these fees to the county treasurer, and did not enter them in the special account book which he was required by law to keep. The indictment in this case related to these transactions. Eight of the counts upon which the defendant was convicted charged misdemeanor in office in willfully neglecting to make proper entry of these fees in the special account book; one count charged misdemeanor in office in failing to account for them; one charged perjury in making oath — 11 — to his monthly return; and eight charged embezzlement of the same sums. By reason of the population of Westmoreland county, the sheriff was subject to the provisions of the Act of March 31,1876, P. L. 13, which was enacted to carry into effect sec. 5 of art. XIV of the constitution, relative to the salaries of county officers and the payment of fees received by them into the state or county treasury, in counties containing over 150,000 inhabitants. Therefore, his compensation was by salary, which, with the salaries of his deputies and clerks, was a charge upon the treasury of the county, to the extent of the fees collected and paid in by him or earned, where such fees are a charge upon the county treasury. But all the fees collected by him by virtue of his office belonged to the county. The act of 1876 is very explicit upon this point. Section 1 provides, and the idea is reiterated in sec. 15, that all fees limited and appointed by law to be received by county officers, or which they shall legally be authorized, required or entitled to charge or receive, shall belong to the county for which they are elected or appointed; “and it shall be the duty of each of said officers to exact, collect, and receive all such fees to and for the use of their respective counties, except . . . .; and none of said officers shall receive for his own use, or for any use or purpose whatever, except for the use of the proper county or for the use of the state, as the case may be, any fees for any official services whatsoever.” Subsequent sections provide an elaborate but easily understood system to be pursued in order to secure proper accounting for the fees received by the officer and payment of the same into the county treasury. Thus sec. 2 makes it the duty of the officer to keep a special account book, the form of which shall be prescribed by the controller, or, where there is no such officer, then by the county auditors, in which an entry shall be made of all the moneys received for fees, and, on the first Monday of each month, to pay to the county treasurer all fees received during the preceding month. He is also required, — 12 — by the same section, to file with the controller or auditors, as the case may be, a transcript in detail of his fee account book for the preceding month, to which he shall make oath or affirmation “that the said transcript contains a true and correct list of all the fees received, earned or chargeable upon the county, for services rendered in his office, either by himself, deputies or clerks, during the preceding month .... and that he has not received and is not to receive from any person or persons whatsoever, for any official services or duty, any other fees than those so entered on said transcript.” Then follows, in sec. 3, the provision that if the officer “shall neglect to render the accounts or to pay over the money received for fees as required by this act, or shall willfully neglect to make any proper entry in the book or books required to be kept, .... or fail to comply with any of the provisions of this act, or neglect to discharge any of the duties herein imposed, the same shall be deemed a misdemeanor in office,” etc. And finally, sec. 4 provides that any officer who shall “willfully swear falsely” in verifying any account, transcript or bill, required by the act, or in making any affidavit in reference thereto, shall be deemed guilty of perjury. 1. Under any permissible construction of the act of 1876, the fees collected by the defendant on the writs alluded to at the outset of this opinion belonged to the county, and proper entry of the same should have been made in the special account book which the defendant was required to keep and did keep. We need not take up time in discussing a proposition which results so plainly from due consideration of the general purpose and intent of the act as well as its unambiguous words. But it is earnestly contended that the defendant, particularly as the business and duties of his office required him to have the assistance of deputies and clerks, could not be held criminally liable upon the several counts which charged him with willfully and unlawfully neglecting and omitting to make entry, in the books provided for that purpose, of fees received and earned for the service of the writs above alluded to, un — 13 — less “the entries in those books were made by the defendant,” or “he had guilty knowledge of the alleged omissions or neglect,” or “he willfully and negligently employed an incompetent and unfit person to keep the books and make the entries therein.” We cannot agree that this proposition presents a complete summary of the sheriff’s responsibility and duty in respect to the entries to be made in the special account book, or comprehends every state of facts upon which conviction of the charges embraced in these counts could be maintained. It leaves out of view the duty which rests upon the officer, of exercising such reasonable supervision of the acts of his deputies and clerks as the circumstances admit of. He is the responsible head of the office. He assumes its high functions upon his implied representation that he has ability to give such • supervision, and upon his implied undertaking, as well as his positive official obligation, to give it. While he may act through a deputy, yet the duty of making the entries devolves primarily upon him, and this includes the duty of exercising supervisory care and vigilance to see that the statutory requirement is fulfilled. He is required, by the act, to make oath to the correctness of the account, even though the entries in the book be made by his deputy or clerk — a requirement which would not have been imposed if the legislature had intended that he could completely perform his whole duty, with regard to the keeping of the account, by employing a competent deputy or clerk. Such construction of the act would be contrary to its letter and spirit and would seriously impair the efficacy of its wise provisions. It would tend to encourage a kind of willful neglect of official duty which, if it became common, would probably result in gross abuses which the penal provisions of the statute were intended to prevent. As the learned trial judge well said, in refusing the point under consideration, “There is duty of supervision and vigilance and care and verification and oversight which may be so grossly neglected as to become in itself active wrongdoing that would enable the jury to say — 14 — that the acts charged in these counts were willfully committed as charged in the counts.” The refusal of the point and the answer thereto were correct. 2. By the point the affirmance of which is the subject of the second assignment of error, the court was requested to charge that there could be no conviction on the count which charged as a misdemeanor in office the neglect to account for and pay over the moneys received for service of the writs above named, unless the jury found that he was thereunto lawfully required by the controller or other proper officer, by demand made upon him. This point was properly refused, for the reason that, by the terms of the statute, neither the officer’s duty to account for and pay over the money, nor his guilt of misdemeanor in office in neglecting that duty, is made to depend upon any prior demand by any other officer. It was not incumbent on the commonwealth to allege and prove a fact that the statute does not make an essential. 3. For the same reason, if for no other, the point which is quoted in the third assignment of error, and which relates to the essentials to a conviction upon the counts charging the defendant with having willfully sworn falsely to the monthly returns, was properly refused. The duty of the officer to make the oath, and his duty to swear truthfully in verifying his account, does not depend upon a previous demand upon him by any other officer that he account for all the fees he has received. That is an obligation which the statute itself imposes upon him. Nor was the point strictly accurate in asserting that, in order to convict, the jury must find that “he willfully, intentionally, and corruptly swore to that which he knew to be false, or having sworn to the best of his knowledge and belief, as the defendant did, not believing it to be true and correct.” The words of the act are, “shall willfully swear falsely.” The oath is not “taken under such circumstances of haste or surprise as afford no opportunity for deliberation.” It is required to be made by an officer whose opportunities and duties enable and require him to — 15 — know whether the account is true or not. Before making the oath he is presumed to investigate and deliberate, and much of the efficacy of the statutory provisions depends upon his fidelity in that regard. It is true, that even in the exercise of the vigilance and care that the law imposes on the officer, honest and unintentional mistakes may occur, and for such mistakes the officer cannot be held criminally liable. But it is going too far to say that his mere belief of the correctness of his account, no matter how unfounded or how recklessly formed, will excuse him from the consequences of willfully swearing falsely. ■ In the case of such an oath, taken under such circumstances as we have alluded to, it was proper and not irrelevant, under the evidence adduced at the trial, to qualify the point by calling the jury’s attention to the principle enunciated and applied in Com. v. Cornish, 6 Binn. 249, that a person swearing willfully and deliberately to a thing which he rashly believes, but has no probable cause for believing, and which is in fact false, may be guilty of perjury. In no later Pennsylvania decision of authority that has come to our notice has this principle been disputed, and in at least two cases it was distinctly recognized by the Supreme Court: Steinman v. McWilliams, 6 Pa. 170, 178; Brooks v. Olmstead, 17 Pa. 24, 29. See, also, 3 Greenleaf’s Ev. (15th ed.), sec. 200. The instructions given in answer to the point, as well as those given upon the same subject in the supplemental charge, were in substantial accord with this doctrine and contain no reversible error. 4. The court was requested to charge that there could be no conviction on the counts charging embezzlement unless the jury found that the defendant had “converted to his own use” or had “used by way of investment in any kind of property or merchandise” all or some portion of the fees, or had “defaulted and failed to pay over the same after being thereunto legally required by the controller or other proper officer authorized to demand and receive the same.” The answer to this point is the subject of the fourth assignment of error. While the — 16 — point, as a whole, was refused, the court explicitly instructed the jury, in the same connection, that before they could convict on these counts they must find, beyond a reasonable doubt, that the defendant had converted the money to his own use. But, inferentially at least, other portions of the answer conveyed the idea that it was not necessary to prove that the defendant had invested the money in any kind of merchandise or property, or that a demand for payment of the money had been made upon him by any other officer. The same idea was conveyed in the general and supplemental charge, and it is fair to assume that the jury so understood the answer to this point. In support of the contention that a demand was necessary, counsel cite and rely upon Com. v. Shoener, 212 Pa. 527. But the counts upon which the defendant was convicted in that case (we quote from the opinion of Justice Brown) “charged him simply with having failed to pay over the license fees, ‘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,5” and it was held that the conviction was erroneous because no such demand had been made as was contemplated by the clause of the statute under which the counts were drawn. In the present case, each of the embezzlement counts, after necessary and proper preliminary averments relative to the collection of the fees for service of the particular writ, charged that the defendant “did then and there unlawfully, willfully and fraudulently convert and appropriate the same to his own use, and embezzle the same.” No allegation of a prior demand was made, and none was necessary in order to charge the particular offense for which the defendant was indicted. ‘ ‘ The sixty-fifth section of the Act of March 31,1860, P. L. 382, clearly specifies four distinct and separate acts with reference to public money, which shall constitute the offense of embezzlement, to wit, conversion to the officer’s own use, investment in property or merchandise, becoming a defaulter, — 17 — or failing to pay over on proper demand. These are enumerated in the disjunctive, and it is further declared that ‘every such act’ shall be deemed and adjudged an embezzlement. Each of these acts, therefore, though of varying character and degree of moral turpitude, is of equal legal import, and by itself constitutes the full statutory offense:” Com. v. Mentzer, 162 Pa. 646. These counts charged the first of these statutory offenses and, therefore, a prior demand was not necessary to its completion: Com. v. Shoener, 30 Pa. Superior Ct. 321, 328, s. c., 216 Pa. 71. The fourth assignment is overruled. 6. Next in logical order, although not in number, are the ninth and tenth assignments, and that portion of the twelfth in which complaint is made of the instructions given by the court, in its supplementary charge, upon the subject of conversion. In considering these instructions it is to be borne in mind that the court was speaking of the particular case, and was not laying down an abstract rule of law that would be applicable to every case of the mere deposit in bank of fees collected by a county officer. They are to be reviewed in the light of the undisputed facts that the money received for the service of the Fayette county writs was deposited in bank to the credit of an account kept in the defendant’s name as sheriff, and that the defendant deposited in the same bank account his own personal funds and drew on the fund, from time to time, checks in discharge of purely personal obligations and other matters. In his general charge the learned judge correctly summarized the facts brought out by the cross-examination of the defendant and his deputy, and by the documentary evidence relating to this bank account, when he said, “that this account was not only drawn upon in the payment of writs and in the payment of those whose money was held in trust but it was drawn upon for a great variety of purposes that were personal to the sheriff himself, and, in addition thereto, that this fund was not made up solely of money that was collected from the execution of process in the sheriff’s hands, but that, from time to — 18 — time it was added to by other moneys that belonged to the sheriff personally.” We need not discuss the sufficiency of these acts standing alone to establish the embezzlement charges. They do not stand alone. In addition to these facts, it should be recalled that entries of the fees in question were not made in the special account book as they were received from time to time, that they were not included in the several monthly returns or transcripts in which they should have been included, and were not paid over to the county. In view of all these admitted and undisputed facts, and of the explicit and unambiguous declaration of the statute that the fees received by the officer by virtue of his office are collected for the use of the county and belong to the county, the court was within its province in saying to the jury that there was a misappropriation of the fees in question and that, if the defendant knew that he was making that improper use of the money, he could be found guilty of embezzlement, particularly as this was immediately joined with the instruction, which had been given in other parts of the charge as well, that “the willfulness must be present in order that he be found guilty of the embezzlement charges.” The judge did not say, nor is there anything in what he said from which the jury could infer that he meant, that the admitted and undisputed facts above alluded to established the willfulness of the misappropriation. On the contrary, the jury were clearly given to understand, by the instructions as a whole, that though there was a misappropriation, yet willfulness was essential to conviction, and that it was for them to, determine, from all the evidence, whether this essential had been established. In Com. v. Ellis, 46 Pa. Superior Ct. 72, it was held that, if certain facts which in law constitute a sale are testified to by the defendant himself, the judge does not invade the province of the jury by instructing them that the transaction was a sale, for the province of the judge is not merely to counsel, but to instruct, and it is the duty of the jury to take his instructions as the best evidence of the law. The same principle — 19 — has been applied in many other cases, both civil and criminal, and is applicable here. Instructing the jury clearly as to the legal effect of the facts just alluded to was well calculated to bring their minds directly to a proper consideration of the real matter of fact in dispute, namely, the willfulness of the misappropriation. This dispute arose out of the defendant’s contention-that he had no knowledge that the money received for the service of these Fayette county writs was deposited in bank; in other words, that they had been collected and deposited by his deputy without his knowledge. That question of fact was submitted to the jury, with comments which were applicable to the case but which left them free to decide the question for themselves on the evidence. We cannot agree with the appellant’s counsel, that the manner in which it was submitted was inadequate or unfair. Speaking of willfulness as an essential element of the offense, the learned judge said: “The act, to be a criminal act, must be a willful one; he must have knowledge of the violation of the law; he must know that he has that money.” He then proceeded to comment on the evidence pertaining to that question, as follows: “With respect to the willfulness of it, he says he did not know it. On that question you will also consider the testimony of his deputy, but you will further consider what the law requires of him as an officer, that it requires him to know, and that he have books, if they are properly kept, that will inform him about what goes on in his office. You will further consider the testimony on that issue, with respect to what he said, right at the beginning of this case; at the time when he was arrested, it is alleged by two witnesses for the commonwealth that he said that he had this money ‘and by God he was going to keep it.’ If that is true and he spoke consciously of these particular fees, that would be plainly indicative of a willful retention of this money. You will consider, in that connection, what his explanation is of what was in his mind, at the time he made whatever remark he did make. Perhaps he is not very — 20 — definite, on the precise terms that he did make use of.” The specific criticism made of this part of the supplemental charge is that the court did not quote the defendant’s explanation of the conversation as given on the witness stand. But a careful reading of that testimony convinces us that the court was right in saying that the defendant was not very definite as to the terms he made use of. To have quoted his entire testimony upon the subject would have made the confused and unsatisfactory nature of his attempted explanation of this significant testimony still more apparent. In Com. v. Kaiser, 184 Pa. 493, where the adequacy of the judge’s review of the evidence in his charge was under consideration, the court, by Mitchell, J., said: “It is enough if he gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the respective contentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing. Viewing the instructions complained of in these three assignments, in the light of the evidence, we conclude that they come fully up to this standard and are free from other error of law. 6. The point embraced in the sixth assignment of error was properly refused, because it was not stated hypothetically but it assumed the existence of certain facts which were in controversy under the evidence and which it was the province of the jury to determine, and concluded with an instruction that there could be no conviction of the defendant upon any of the counts of the indictment. It sufficiently appears from what we have heretofore said, that such instruction would have been erroneous. 7. It was contended by defendant’s counsel, and the court was requested so to charge, that the provisions of the third and fourth sections of the act of 1876 are unconstitutional and void in so far as they attempt to declare and prescribe certain acts therein mentioned as misdemeanors and provide penalties for the same, because no — 21 — notice of such provisions appears in the title of the act. We need not take up time in elaborately discussing that question. The principle that controls it, and required refusal of the point, was clearly set forth in Com. v. Jones, 4 Pa. Superior Ct. 362. Further, in Taggart v. Com., 102 Pa. 354, it was held that the title of the act is sufficiently indicative of all the provisions enacted to comply with the constitutional requirement relative to the title of acts. 8. The next question to be considered is raised by the seventh and eighth assignments of error and relates to the admissibility of evidence that the defendant did not enter in the special account book nor in his monthly transcripts, and did not account for and pay over to the county treasurer, fees received by him for the service of other writs, issued out of the courts of other adjoining counties, which were not embraced in any of the counts of the indictment. The doing of another criminal act, not part of the issue, is not admissible as evidence of the doing of the criminal act charged, except when offered for the specific purpose of evidencing design, plan, motive, identity, intent, or other relevant fact distinct from moral character: Wigmore on Evidence, sec. 192. In subsequent sections of his valuable work the learned author shows, by reason and abundant authority, that such an act, notwithstanding its criminality, may be admissible, in some circumstances, in so far as it is relevant to evidence the party’s knowledge, intent, or design, if such be in issue: Wigmore on Evidence, secs. 300, 305. One of the illustrations he gives is as follows: On a charge of larceny by making false entries in books of account kept by the defendant employee, the making of other incorrect entries in the same set of books within a few months before and after is admissible to negative the probability of honest mistake in figuring; if only one or two such other errors are offered they should be limited to substantially the same transaction and period; the range of time and subject may broaden with the number of errors offered. This illustration aptly — 22 — applies to the present case. A leading case on the subject is Goersen v. Com., 99 Pa. 388, where the general principle was stated as follows: “It is true, a defendant cannot be convicted of the offense charged, merely because he has committed another offense, either of a similar or dissimilar kind. Hence, as a general rule, evidence of his participation in another independent and distinct crime, cannot be received simply for the purpose of proving his commission of the offense for which he is on trial: .... It cannot be received to impeach his general character, nor merely to prove a disposition to commit crime. Yet under some circumstances, evidence of another offense by the defendant may be given. Thus it may be to establish identity; to show the act charged was intentional and willful, not accidental; to prove motive; to show guilty knowledge and purpose, and to rebut any inference of mistake; in case of death by poison, to prove the defendant knew the substance administered, to be poison; to show him to be one of an organization banded together to commit crimes of the kind charged; and to connect the other offense with the one charged, as part of the same transaction.” We will not incumber this opinion by reviewing the numerous cases in which, upon one or more of the grounds above suggested, evidence of such other criminal acts was held admissible. Some of these cases are cited in Com. v. Valverdi, 32 Pa. Superior Ct. 241, s. c., 218 Pa. 7; Com. v. Levinson, 34 Pa. Superior Ct. 286; Com. v. Griffin, 42 Pa. Superior Ct. 597. Here the evidence tended to show that the course pursued with regard to fees on writs from other outside counties, at or about the same time, was the same course that was pursued with regard to the Fayette county writs. The number of instances in which such general method of dealing with that particular kind of writs was pursued was sufficiently large, and the times of_ their occurrence were sufficiently near the instances charged in the indictment, as to lend probability to the allegation that the latter resulted from intention and design and were part of a system, and to negative, or at least weaken, — 23 — the probability of their being the result of inadvertence or mistake. Having regard to the nature of the issue, and of the contention that the acts charged were not willful and intentional, we conclude that, for the purpose stated, the evidence was competent, and, having been sufficiently guarded in the instructions which the court gave to the jury, there was no error in its admission. 9. There is printed in the appendix to the appellant’s paper-book what purports to be the closing address to the jury of one of the counsel for the commonwealth, to which is appended a certificate of one of the official stenographers of the court, which, so far as it relates to this matter, is in these words: “that by engagement and employment of the defendant’s counsel I reported the address of D. C. Ogden, Esq., to the jury in the above stated case, and that the foregoing transcript of the same is true and correct to the best of my ability to report and transcribe the same.” It does not appear that the stenographic report of the address was made or was transcribed in longhand by direction of the court, but it does appear that the transcript is not included in the report of the proceedings upon the trial which the judge approved and directed to be filed. Clearly, it is not part of the record. Moreover, the correctness of the report of the address is not conceded, but is expressly denied by counsel for the commonwealth. It necessarily follows that it cannot be considered in disposing of the eleventh assignment of error: Com. v. Weber, 167 Pa. 153. But it appears, by the official report of the trial, that at the close of the address of commonwealth’s counsel, defendant’s counsel moved the court to withdraw a juror and continue the case, for the alleged reason that the former had made certain improper remarks in his address, specifying them, and that the court refused the motion and noted an exception. This ruling is the subject of the eleventh assignment of error. There are two recognized methods of bringing remarks of counsel, in addressing the jury, upon the record so as to make the ruling of the court relating thereto subject to review. One method — 24 — is to call the court’s attention to them at the time, request that they be placed on the notes of trial, and except to the court’s ruling upon the motion to withdraw a juror and continue the case, or other similar motion: Com. v. Weber, 167 Pa. 163. The other method is that which was pursued in Holden v. Penna. R. R. Co., 169 Pa. 1, where the matters complained of were brought before the court by an affidavit in support of their verity. Neither of these methods was pursued in the present case. There was the bare assertion in a motion, that counsel had made certain remarks; but this assertion was not verified in any way, nor is the truth of the assertion implied in the court’s refusal of the motion. It is strenuously objected that this did not bring the remarks on the record for purposes of review, and, in the opinion of the writer, this objection is well founded, and is supported by several cases. Amongst these, I refer to Com. v. Eisenhower, 181 Pa. 470; Com. v. Windish, 176 Pa. 167; Guckavan v. Lehigh Traction Co., 203 Pa. 521; Com. v. Smith, 2 Pa. Superior Ct. 474; Sheehan v. Rosen, 12 Pa. Superior Ct. 298; Com. v. McMahon, 14 Pa. Superior Ct. 621. But granting that this position is not well taken, and conceding, as must be conceded, the impropriety of some of the alleged remarks of counsel, it does not necessarily follow that the refusal of the motion is, of itself, ground for reversal, the case in other respects having been well and carefully tried. “When counsel misstate facts or material evidence, or resort to comment unfair or unduly prejudicial to the other side, it is the duty of the opposing counsel at once to call the attention of the court to the matter, and the action of the court may then become the subject of exception. In general it is a matter of discretion and reviewable only for abuse: Com. v. Windish, 176 Pa. 167; Com. v. Weber, 167 Pa. 153:” Com. v. Ezell, 212 Pa. 293. There may be instances where the refusal to withdraw a juror because of objectionable remarks of the district attorney would be, under all circumstances, an abuse of discretion, as, for example, where the counsel calls attention to the fact that the defendant has — 25 — not offered himself as a witness in the case. But the remarks complained of in the present case are not of that nature. There is fair ground for surmise that some of them may have been called out by what had been said by defendant’s counsel. But at any rate the court was in better position to know than we are whether they were likely to have a prejudicial effect, an effect which could only be counteracted by allowing the motion. Upon a full view of the judge’s charge, which followed these alleged objectionable remarks, and of the evidence in the case, we are unable to conclude that there was such abuse of discretion as requires a retrial of thé case. The remaining matter to be noticed is the sentence, and, for the reason given in our opinion herewith filed in the case against the same defendant, the record must be remitted to the court below for correction of the sentence. All of the other assignments are overruled. The sentence is reversed and the record is remitted to the court of quarter sessions of Westmoreland county, with direction that the court proceed and sentence the defendant afresh in due order and according to law; and it is ordered that the defendant forthwith appear in that court for the purpose of sentence as aforesaid.