Commonwealth v. Sitler

Opinion by

Kephart, J.,

The defendant, a tax collector, was indicted under Section 1 of the Act of June 3, 1885, P. L. 72, for embezzlement. The learned trial judge specially presiding carefully considered and correctly determined many of the questions now before us. The Act of 1885 provides: “That if any person charged with the collection, safekeeping, or transfer of any state, county......taxes, under any law or laws of this Commonwealth, shall convert or appropriate the moneys so collected, or any part thereof, to his own use in any way whatever, or shall use by way of investment in any kind of property or merchandise any portion of the money so collected by him from such tax or taxes, and shall prove a defaulter or fail to pay over the same or any part thereof at the time or times, place or places, required by law and to the person or persons legally authorized to demand and receive the same, every such act shall be deemed and adjudged to be embezzlement......” The act prescribes four separate and distinct offenses, which jointly may be consolidated into one offense: Commonwealth v. Swab, 59 Pa. Superior Ct. 485. Considered as distinct offenses, the conversion or 'appropriation of money received from taxes, the investment in property or merchandise, becoming a defaulter with respect to such moneys, of failure to pay over at the time and place required by law to the persons authorized to demand and receive the money thus collected from taxes, are the offenses defined by the act. There is no difference between the Act of 1885 and the 65th section of the Act of 1860, as to- the character of the several offenses as specified in these acts: Commonwealth v. Mentzer, 162 Pa. 646. The defendant was indicted for converting and appropriating money received from taxes to his own use. This charged a complete offense under the act. Where, during the term of office of a tax collector, it is discovered that he has appropriated money received as taxes to his own use, and such conversion and appropriation is established by competent proof, the offense is complete. In such a case it is not necessary to show a prior demand by someone authorized to make such demand. Nor need the Commonwealth await a monthly settlement between the collecting and receiving officer or a final settlement between such officers at the expiration of the tax collector’s term. This provision of the act affords an immediate remedy for the wrong therein described. Such settlements are not absolutely necessary to determine the issue' between the Commonwealth and the offending collector. Nor is it necessary that the public official directly connected with the fiscal affairs of the county institute the prosecution. Any person who knows of the facts or is reliably informed thereof may act as such prosecutor. Commonwealth v. Shoener, 212 Pa. 527, decides nothing to the contrary. In that case the officer was prosecuted for “failure to pay over at the time and place required by law to the person authorized to demand and receive the same.” A prior demand is made necessary by the express terms of the act. The Acts of May 21, 1913, P. L. 284, and July 9, 1897, P. L. 242, do not prevent a prosecution under the Act of 1885. We might add to what Judge Moser states, with respect to these acts, in his opinion overruling defendant’s motion for a new trial, that the purpose of the Act of 1885 . was not only to punish for the failure to pay over on demand tax moneys, but it punishes the unlawful use of such money by the officers entrusted with their collection, while it is in their custody or control. The act was intended to prevent delinquencies by tax collectors by declaring it to be a crime to make use of the money, even temporarily, for the collector’s benefit; but the Commonwealth must show that there is money collected from taxes, which is the property of the municipality, and that the collector has converted and appropriated that money to his own use.

Appellant does not seriously contend that such evidence is not present in this case. Since the time payments were made on account of the 1913 and 1914 duplicates, there has been a sum of money collected by the defendant from taxes for both of these years. The money has not been turned into the county treasury or in any manner attempted to be accounted for by the tax collector. One of the taxpayers testifies that the personal account of the appellant was liquidated by taxes due to the county. This was an act of conversion and appropriation within the meaning of the act. It called for an explanation from the defendant. It to a certain extent gives strength to the “inferences and presumptions” arising from the other evidence in the case. In September, 1915, the defendant abandoned his office, left Ms wife and children, absconded and went to the Pacific Coast. While there, to speak mildly of his conduct, he spent his money quite freely. He went under an assumed name until arrested and returned to Schuylkill County December 25, 1915. In the meanwhile the court declared a vacancy in the office of tax collector of Tamaqua and appointed a person to fill that vacancy. The tax account in the connty treasurer’s hands show that there was over $12,-000 due to the county from the defendant. When the defendant attempted to explain Ms conduct it was most unsatisfactory. No official or other record was produced. There was nothing to show how much money had been received, or what taxables had paid their taxes. The tax duplicate contained no record of payments, and the receipt stubs could not be found. His estimate as to the amount of money overpaid to the county treasurer in former settlements was a mere guess. The case was carefully tried, and notwithstanding the very able presentation by the appellant’s counsel, we are convinced that the record presents no error of law or any injustice done to the appellant.

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.