Commonwealth v. Mentzer

Opinion by

Mr. Justice Mitchell,

The sixty-fifth section of the act of March 31, 1860, clearly specifies four distinct and separate acts with reference to public money, which shall constitute the offence of embezzlement, to-wit, conversion to the officer’s own use, investment in property or merchandise, becoming a defaulter, 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 very varying character and degree of moral turpitude, is of equal legal import, and by itself constitutes the full statutory offence. Prima facie therefore each of such acts charged is a separate crime, and where such is the fact no two can be charged in the same count.

But while as a matter of public policy each act has been individualized and made to amount to the full and completed offence, the statute could not, nor has it attempted to, change the nature of the acts as possible parts of the same transaction, and where that is in fact the case, and two or more of the enumerated acts are in truth only successive steps in one appropriation or embezzlement of the same money, it would be contrary to the fundamental principles of our criminal jurisprudence to hold that they had not merged and become but one offence. The possible consequences of any other view are too serious to permit its entertainment. Thus a public officer might invest the money in property and lose it, and thereby become a defaulter, and fail to pay over to the treasurer. Each of these acts by itself would under the statute be an embezzlement, and make him liable to an imprisonment of five years, yet if they were successive steps in but one taking of the same public money they would amount to but one crime in fact, and 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, or that a conviction and sentence for the final act of failure to pay should not be a good defence to a separate indictment for the previous act of investment in property. We must give the statute a reasonable construction, in accordance not only with its plain general intent, but also with the fundamental principles of our criminal law. The four specified acts may therefore be four distinct and separate of-fences, or they may be so entirely parts of the same transaction that they combine to make but one. Into which category they fall must depend on the facts of each case, and therefore must raise a question for the jury. That being so there is no legal difficulty in joining two or more such acts in one count.

The general principle that separate offences shall not be joined in the same count is indisputable, but where two or more acts are but parts of the same transaction the rule does not apply. This was distinctly held in Com. v. Miller, 107 Pa. 276, where it was said by our late brother Clark : “ But when a statute makes two or more distinct acts connected with the same transaction indictable, each one of which may be considered as representing a phase in the same offence, it has in many cases been ruled that they may be coupled in one count. (Quoting Wharton’s Crim. Plead. 257) .... It is not regarded as duplicity thus to join successive statutory phases of the same offence.”

There is no question raised in the present case that the two acts charged in the count were not parts of the same transaction, the only defence being the alleged duplicity in the indictment, as matter of law. Under the principles of Com. v. Miller this assignment of error cannot be sustained.

Judgment affirmed, and it is ordered that the appellant, John W. Mentzer, surrender to the sheriff of the county of Lancaster, that the sentence of the court may be carried out.