Commonwealth v. Swab , 59 Pa. Super. 485 ( 1915 )

Opinion by

Kephart, J.,

The defendant, acting as the deputy treasurer of Northumberland county, was convicted under sec. 65 of the Act of March 31, 1860, P. L. 400, of aiding, abetting and being an accessory in the embezzlement of $19,497.38, by the treasurer of that county, in the treasurer’s becoming a defaulter, and in the treasurer’s failing to pay over, on demand, the amount due. Testimony was submitted by the commonwealth to show that at the close of the treasurer’s term there was a shortage in his accounts with the county in the amount above specified. The expert who so testified had gone over the books and papers turned over to him by the defendant. They showed the moneys received and paid out for county purposes. The defendant admitted to the expert that he had made certain payments, not for county purposes, from the county’s funds, which helped to make up this shortage. The entire shortage was not accounted for. The defendant, from the day the treasurer was inducted into office until the close of the treasurer’s term, had absolute control and sole charge of the affairs of the office. He received and disbursed the county moneys, kept all books, memoranda and papers evidencing receipts and disbursements, had possession of the only key to the vault, and at no time, with the exception of one day, when the defendant went to Philadelphia, did the treasurer have the key or remain in the control of the office. It was incumbent on the defendant to know just what moneys the county had, what commissions the treasurer was entitled to, and if there was a shortage, it is evident that he was the only person who was in a position to know anything about it. The defendant conversed with the treasurer some weeks before the latter’s term expired, concerning the existence of this shortage, and volunteered to make a part of it good by raising money on his own property. The defendant, in his own behalf, admitted that he knew of the shortage long before his conversation with the treasurer concerning it, and he must have known it when he failed to account for the county’s share of the liquor license fees for one of the previous years. As evidence bearing on the question of intent and to affect the defendant with guilty knowledge, it was shown that the county’s funds were used by the defendant in paying bills not authorized by the county commissioners, and not for county purposes, such as purchase of diamond rings, brooch, cigars, election expenses, duebills and payment of various personal items of the treasurer, the use of the county’s share of the money received from liquor license fees, and many other matters. When the defendant used the county’s moneys, either in his own behalf at the direction of the treasurer, or for the treasurer personally, knowing, as he must have known, and as his duty, as well as his being in fact the sole custodian of the county’s moneys, required him to know that the treasurer was not entitled to any money as commissions or otherwise, his acts in furtherance of these unlawful expenditures or payments would make him liable as charged under the several counts submitted to the jury under this indictment. The treasurer had been convicted as a principal for these offenses. With this evidence before the court the defendant’s fifth, twelfth and sixteenth points were properly refused and the first, third and sixth assignments of error are overruled.

The matters contained in the second assignment of error were fully covered by the court in its general charge to the jury and the affirmance of other points presented by the defendant.

In the counts submitted to the jury, the commonwealth pressed for a conviction of the defendant in that he “did willfully and fraudulently aid and abet the said William M. Lloyd in the several wrongful acts and misdemeanors aforesaid, (embezzlement, 1st count; a defaulter, 3rd count; and failing to pay over, on- demand, the amount due, 4th count) and was then and there accessory to said unlawful acts and misdemeanors. ...” Whether Swab could be convicted of the crime of embezzlement is not material: Commonwealth v. House, 10 Pa. Superior Ct. 259. The request for instructions was entirely too broad. It embraced all counts in the indictment. If defendant’s acts amounted to an embezzlement of county funds, and by reason thereof it was impossible for the treasurer to turn over to his successor at the close of his term the amount due, this embezzlement by the defendant would be an aiding and abetting as charged in the fourth count of the.indictment. The fourth assignment of error is overruled.

The facts in the case at bar present the converse of the proposition as passed upon in Commonwealth v. Mentzer, 162 Pa. 646. There the defendant was charged in one count for the separate and distinct offenses mentioned in sec. 65 of the Act of March 31, 1860. In the case before us the aiding, abetting, etc., in each offense was set out in separate counts. The evidence shows that the acts were but successive steps in one continuous transaction to which, when established, the various crimes as set forth in this section might apply. It was not the purpose of the legislature to segregate the different elements which go to make up a crime and apply to each of these elements a punishment and then to the completed whole a punishment, thereby creating a cumulative system of punishment; but it was intended, where the acts were so related one to the other that they may be said to be progressive or a succession of acts, that the punishment provided by the statute would be applied to the completed offense when it is determined. It may be impossible and impracticable for the district attorney to elect on which count he will ask for a conviction. The elements of the separate crimes mentioned are practically the same. We have a treasurer embezzling $19,000. By that act he is not only an embezzler but a defaulter and he fails to pay over, on demand, the money to his successor. While each of these conditions may constitute a separate offense, yet combined .they constitute the offense of embezzlement, or separately they present a full statutory offense, but as said in Commonwealth v. Mentzer, supra, “it is not to be supposed that the statute intended that he should be indicted, convicted and sentenced to fifteen years on the separate branches of it. . . .” And if they were successive steps in the one taking of public money they would amount to but one crime in fact. “Into which category they fall must depend on the facts of each case, and therefore must raise a question for the Jury.” Though the verdict be returned on all counts, the punishment, where the four specific acts are but part of the same offense, cannot exceed the time provided by the statute, to wit, five years. The punishment in this case did not exceed this time. The fifth assignment of error is overruled.

The defendant was indicted under sec. 65 of the Act of 1860 in substantially its exact language. His principal was convicted under this same act. As stated in Commonwealth v. Keuhne, 42 Pa. Superior Ct. 361, “the fact that the 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.” It is there held that the period of limitation, as provided in the act of 1860, is not enlarged by the Act of June 12, 1878, P. L. 196. The limitation period is fixed by the act under which the indictment is found, but if the offenses described in the indictment came within a class mentioned in some other statute and in other respects the statute might apply, a trial and conviction under this statute would be sustained. It must be conceded that nowhere in the act of 1878 is there any provision covering all the counts in this indictment.

While some of the disbursements of county funds made by the defendant in behalf of the treasurer and himself were beyond the statutory period, they were continuous, being a series of unlawful acts, and the reason for their introduction, according to the offer, was to show guilty knowledge on the part of the defendant, and, under the authority of Commonwealth v. Sanderson, 40 Pa. Superior Ct. 416, the evidence was competent, provided it be made to appear that one of the unlawful acts, following the others in reasonably close sequence, be within the statutory period. The indictment was returned September 24, 1913. Lloyd authorized the defendant to take $1,000 of the county’s funds to be used in the election of 1911, when the defendant was a candidate for treasurer to succeed Lloyd. As accounting for this $1,000 used for campaign expenses, from the memorandum submitted by the defendant to the expert it appears that on September 25, 1911, he paid to Alfred Lloyd cash for Shamokin, $200; disbursements on account of other personal matters, viz.: November 7, 1911, a check was paid to Mike Lavelle for $5.00, and on December 2, 1911, Lloyd secured $1,460 for numerous personal items, at the time known to the defendant. It likewise appears that the defendant drew his salary up until December 31, 1911, from county funds. The position this defendant held, his control of the county’s finances, the fact that the shortage existed, with all the circumstances surrounding it, with the evidence of the items just mentioned, amply warranted the verdict as found. The seventh and eleventh assignments of error are overruled.

The eighth and ninth assignments of error complain of the charge of the court. It is apparent from the evidence that over $19,000 was taken from Northumberland county. This defendant was in absolute control of this money, the treasurer was there but one day, and when the trial judge made the remark, in illustrating another point in his charge, “if Swab actually took these funds himself,” it did the defendant no harm, as the charge as a whole presented the case fairly. The same may be said of other language, “whether he has satisfactorily explained this transaction away to your entire satisfaction.” This excerpt, if it referred to all the evidence produced by defendant, would be manifestly unfair to the defendant, but the court below was commenting upon the defendant’s testimony concerning the possibility of errors in the accounts being made by clerks, who were employed by the defendant or the treasurer, and which would account for this shortage. The trial court, in its charge, on the question of reasonable doubt and in answer to many of the defendant’s points, fully stated the law and dissipated any ill effect that this remark might have made. See Commonwealth v. Nye, 240 Pa. 359; twelfth assignment of error and answer thereto. These assignments of error are overruled.

The treasurer, Lloyd, in testifying as to the responsibility for the shortage, if there was one, that Mr. Swab was “the best man to answer that question because he had absolute control in that office for the three years he was in there,” did so because of his cross-examination by the appellant. We feel that the evidence was proper in view of the testimony that had been previously brought out. The tenth assignment of error is overruled.

The case was carefully tried by able and zealous counsel and was submitted by the learned president judge in a clear and impartial charge, which is free from substantial error.

The judgment is affirmed, and it is ordered that the defendant, appellant, appear in the court below at such time as he may be there called, and that he be by the court committed until he has complied with the sentence or any part of it that had not been performed at the time this appeal was made a supersedeas.