Basil Clare, Asst. Dist. Atty., Joseph E. Pappano, First Asst. Dist. Atty., Chester, Raymond R. Start, Dist. Atty., Media, for appellant.
W. H. Turner, Media, for appellee.
Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.
[ 176 Pa. Super. Page 33]
Appellee, Arthur Turner, was indicted and pleaded not guilty to a charge of cheating by false pretenses under the Penal Code, Act of June 24, 1939, P.L. 872, § 836, as amended by the Act of May 21, 1943, P.L. 306, § 1, 18 P.S. § 4836, in the Court of Quarter Sessions of Delaware County. At the close of the Commonwealth's case the trial judge sustained defendant's demurrer to the evidence, and the Commonwealth has appealed.
Appellee was employed by the Congoleum-Nairn Company at Trainer, Delaware County, from July 10, 1943 until March 7, 1952. On November 8, 1949 he went to the office of W. G. Brittain, chief clerk of his employer, to report that he had not received his vacation pay for 1949. Upon being shown photostatic copies of two returned checks in the amount of $57.68 each (which apparently represented his compensation for the period in question), he executed an affidavit that the signatures purporting to be his endorsements thereon were not his, nor authorized by him, and were believed by him to be forgeries, and that he had not received the proceeds of the checks. Thereupon the
[ 176 Pa. Super. Page 34]
employer issued new checks to him in replacement of those allegedly forged. On April 6, 1950, according to the testimony of Mr. Brittain, appellee again came to see him to complain that he had not received his 1950 vacation pay. Again he was shown photostatic copies of two returned checks, each in the amount of $46.17, bearing his endorsements, again he executed an affidavit that he believed the endorsements forgeries, and again new checks were issued by the employer.
Urban Doeber, a Commonwealth witness, testified that he had owned and operated a retail liquor store in Wilmington, Delaware, and that over a period of five or six years he had been cashing appellee's pay checks 'practically every week'. He testified that he had cashed both sets of checks in question when appellee presented them to him and that he had been required to make restitution in the amounts of $115.36 and $92.34 respectively.
Appellee at the time of the execution of the affidavits and at time of trial was a resident of the State of Delaware. The Commonwealth has contended in the court below, and now before us, that the two-year statute of limitations on actions for cheating by false pretenses embodied in the Act of March 31, 1860, P.L. 427, § 77, as amended by the Act of April 6, 1939, P.L. 17, § 1, 19 P.S. § 211, was inapplicable and that, instead, the case fell within the exception of the Act, viz., 'Provided however, That if the person against whom such indictment shall be brought or exhibited, shall not have been an inhabitant of this State, or usual resident therein, during the said respective terms for which he shall be subject and liable to prosecution as aforesaid, then such indictment shall or may be brought or exhibited against such person at any period within a similar space of time during which he shall be an
[ 176 Pa. Super. Page 35]
inhabitant of, or usually resident within this State'. That this was procedurally proper, in the absence of an averment in the indictment showing commission of the offense within the statutory period, see Com. v. Bishop, 71 Pa. Super. 255. The court below concluded that, more than three years having elapsed between the time Doeber repaid the bank for the last two checks, which was sometime subsequent to April 6, 1950, and the finding of an indictment against the defendant on June 2, 1953, the prosecution was barred. It rejected the Commonwealth's argument that the statute was tolled by defendant's non-residence in this state inasmuch as he had been, during the period of his ...