Commonwealth v. Shoener

Opinion by

Mr. Justice Brown,

But little need be said in affirming this judgment. The learned and careful trial judge correctly disposed of the questions raised by the appellant, and, in doing.so, understood what was said in Commonwealth v. Shoener, 212 Pa. 527, just as Ave intended it should be understood. The same is true of the Superior Court, and to its clear opinion affirming the judgment below nothing can be profitably added.

In support of his plea of autrefois acquit, the appellant relies upon our reversal of the former judgment against him. The jury on the trial of the first indictment found him guilty of having failed to pay over the license fees in his hands after demand had been made upon him to do so. Our reversal of the judgment on that verdict did not acquit him of the offense charged against him in the present indictment. All that we decided was, that, as the county of Schuylkill could not, at the time the prosecution was instituted, have made a legal demand upon the appellant for the payment of the fees in his hands, the statutory offense of failing to pay over had not been committed. • He was discharged from his recognizance simply because the prosecution against him had been instituted before the offense charged against him was or could have been committed under the admitted facts in the case. He was, therefore, never in jeopardy. If, after his conviction, the court below had arrested judgment on the verdict, he would have been in the same situation in which our reversal of it placed him, but he could not have pleaded the arrest of the judgment as a bar to a new indictment against him for an offense subsequently committed, for he never was in peril. As to this the authorities are without number. Equally unavailing is the plea of the statute of limitations. It was admittedly the duty of the appellant to pay over the moneys in his hands, when he learned, on May 4, 1903, that they belonged to the county; but his failure to perform that duty was not a crime, and, as long as he retained the moneys without a demand from the county that he pay them over, he was not committing the statutory offense for which he was prosecuted in the present proceeding. Failure to pay over was not an offense; failure to pay over on demand was. The county, for any reason, might have indulged him, and, having done so, its indulgence, which kept him from committing crime, cannot, under the plea of the statute of limitations, be now turned into a shield by him to protect him from the consequences of his crime after his commission of it. When he was still legally liable to pay to the county the fees which he had collected, demand was made upon him to pay them over. When he failed to comply with that demand, he, for the first time, committed the offense charged against him in the present indictment, and from the time of his refusal to pay over, June' 30, 1905, and from that time only, could the statute of limitations begin to run.

The judgment of the Superior Court affirming that of the court of quarter sessions is affirmed.