Commonwealth ex rel. Torrey v. Ketner , 92 Pa. 372 ( 1880 )

Mr. Justice Paxson

delivered the opinion of the court, January 19th 1880.

_ It appears by the return to this writ, that the relator is held to answer an indictment in the Court of Quarter Sessions of Schuylkill county, charging him, as cashier of the First National Bank of Ashland, with having embezzled the funds and property of said bank. There are three counts in the indictment, each varying the form of the charge, but not essentially changing its substance.

It is almost needless to say, that a habeas corpus is not a writ of error. Hence, if the court below had jurisdiction of the offence, we cannot correct its rulings in this proceeding, however erroneous they may be. On the other hand it is equally clear, that if the relator is being prosecuted for a matter which is not an indict able offence by the law of Pennsylvania, or one over which the court below has no jurisdiction, it would be our right as well as our plain duty to discharge him. No authority is needed for so obvious a proposition.

Embezzlement by the cashier of a bank is not a common-law offence. This indictment must rest upon some statute of this state, or it cannot be sustained. Has it such support ? As preliminary to this question, it is proper to say, that section 5209 of the United States statutes, provides specifically for the punishment of cashiers and other. officers of national banks, who shall be guilty of embezzling the moneys, funds or credits of such institutions. The relator was not indicted under this section, and could not have been in a state court. Our own legislation upon this subject may be briefly stated. We have first, the Crimes Act of March 31st 1860, Pamph. L. 382, the 116th section of which prescribes and punishes the offence of embezzlement by any person, “being an officer, director or member of any bank, or other body corporate or public company.” Then we have the Act of May 1st 1861, Pamph. L. 515, entitled “ A supplement to an act to establish a system of free banking in Pennsylvania, and to secure the public against loss from insolvent banks, approved 31st March 1860,” which also prescribed and punished embezzlement by bank officers. Lastly, there is the Act of 12th June 1878, Pamph.' L. 196, which amends the aforesaid 116th section of the Act of 1860, by substituting a new' section in its place, and imposing a different punishment. This leaves the Acts of 1861 and 1878 as the only ones which could possibly support the indictment. It was urged, however, and with much force, that the Act of 1861 was only intended to apply to banks organized under the free banking law of which it forms a part; and that as to the Act of 1878, the offence charged in the indictment was committed prior to its passage. This ffict was formally conceded upon the argument, and while we might not be able for such reason to grant relief upon habeas corpus, it furnishes a conclusive reason why, upon a trial in the court below, the Commonwealth could derive no aid from the Act of 1878.

• We are spared further comment upon these acts for the reason that they have no application to national banks. Neither of them refers to national banks in terms, and we must presume, that when the legislature used the words “any bank,” that it referred to banks created under and by virtue of the laws of Pennsylvania. The national banks are the creatures of another sovereignty. They were created and are now regulated by the Acts of Congress. When our Acts of 1860 and 1861 were passed, there were no national banks, nor even a law to authorize their creation. When the Act of 1873 was passed, Congress had already defined and punished the offence of embezzlement by the officers of such banks. There was therefore no reason why the State, even if it had the power, should legislate upon the subject. Such legislation could only produce uncertainty and confusion, as well as a conflict of jurisdiction. In addition, there would be the possible danger of subjecting an offender to double punishment, an enormity which no court would permit, if it had the power to prevent it.

An Act of Assembly prescribing the manner in which the business of all banks shall be conducted, or limiting the number of the directors thereof, could not by implication be extended to national hanks, for the reason, that the affairs of such banks are exclusively under the control of Congress. Much less can we, by mere implication, extend penal statutes like those of 1861 and 1878 to such institutions.

The offence for which the relator is held, is not indictable either at common law or under the statutes of Pennsylvania. We therefore order him to be discharged.