Commonwealth v. Scheiring

Opinion bx

Porter, J.,

The learned judge of the court below, in his opinion refusing the motion for a new trial, very properly reached the conclusion that the count of the indictment upon which the defendant was convicted was founded upon and charged the defendant with the offense defined by sec. 107 of the Act of March 31, 1860, P. L. 382, that is, larceny by a clerk, servant or employee of property of his employer which he had received by virtue of his employment, in the name of his employer. The learned district attorney frankly concedes, in his paper-book, that the indictment is framed under sec. 107 of the Act of March 31, 1860. The indictment is drawn substantially in the language of the said Sec. 107 of the statute, and is, therefore, to be held sufficient in law, under the provisions of the act relating to criminal procedure ap proved March 31, 1860, P. L. 427. If it were attempted to sustain this indictment under any other section of the penal code, we would be met by the difficulty that the count upon which the defendant was convicted is bad for duplicity.

The indictment was found on March 3, 1914. The information under which the prosecution was commenced averred that the offense complained of happened on or about September 26,1911. We have carefully examined the evidence and are convinced that the offense, if any, was committeed not later than November, 1911. There is not a scintilla of evidence which would have warranted a finding that the defendant had been a clerk or employee of the tax collector of Butler Township after September, 1911, or that he had collected any taxes after that time. The evidence upon which the defendant was convicted consisted of admissions made by him not later than November, 1911, and those admissions were to the effect that he had prior to that time misappropriated money. The indictment was not found until more than two years had elapsed after the commission of the offense.

Section 6 of the Act of June 12, 1878, P. L. 196, enacts: “That indictments for misdemeanors committed by any officer, director, receiver, superintendent, manager, broker, attorney, agent, employee or member of any bank, body corporate or public company, municipal or quasi-municipal corporation, may be commenced and prosecuted at any time within four years from the time the alleged offense shall have been committed.” The Commonwealth did not, however, elect to prosecute this defendant for any of the misdemeanors coming within the provisions of this section of the Act of 1878, but it did prosecute him for the felony defined by Sec. 107 of the Act of 1860, P. L. 382. The offense with which the indictment charged the defendant is a felony, and the period of limitation against its prosecution is fixed by Sec. 77 of the Act of March 31, 1860, P. L. 427, as two years next after the felony was committed. The limitation of four years as provided by Sec. 6 of the Act of June 12, 1878, P. L. 196, does not apply to such an in-' dictment. We cannot distinguish this case from Com. v. Keuhne, 42 Pa. Superior Ct. 361, which rules the question here presented. The third point submitted by the defendant at the trial, praying for binding instructions, specifically raised the question of the effect of the statute of limitations and, under the pleadings and evidence, ought to have been affirmed. The third specification of error is sustained.

The judgment is reversed and the defendant is discharged without day.