September 16, 1959
Appeals, Nos. 265 to 269, inclusive, from judgment of Municipal Court of Philadelphia County, April T., 1957, Nos. 6 to 10, inclusive, in case of Commonwealth of Pennsylvania v. Joseph Kauffman. Judgment of sentence and convictions reversed.
Irving R. Shull, for appellant.
Juanita Kidd Stout, Assistant District Attorney, with her Victor H. Blanc, District Attorney, for appellee.
Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).
[ 190 Pa. Super. Page 446]
OPINION BY RHODES, P.J.
The defendant, Joseph Kauffman, was tried in the Municipal Court of Philadelphia and convicted upon five bills of indictment each charging him with embezzlement and fraudulent conversion. The indictments were tried together by a judge sitting without a jury. On one of the indictments, No. 6, April Sessions, 1957, defendant was sentenced to a term of not less than two years nor more than four years in the Eastern State Penitentiary, his motions for new trial and in arrest of judgment having been refused. On the other indictments,
[ 190 Pa. Super. Page 447]
Nos. 7, 8, 9, and 10, April Sessions, 1957, sentence was suspended. Defendant appealed to this Court.
Defendant asks that he be discharged or that he be granted a new trial, and contends: (1) That the indictments were barred by the statute of limitations, (2) that the Commonwealth did not establish his guilt beyond a reasonable doubt, and (3) that the trial judge oversimplified the issues in the case and denied him the opportunity to adequately present his defense.
The charges against defendant arose out of his employment. The private prosecutor, M. Jennings and Sons Company, a corporation, engaged defendant as a manager and superintendent of sales from December, 1953, until October, 1954. The company conducts a fuel, heating equipment, and home improvement business in Philadelphia. In the course of his employment, defendant collected certain sums from customers which admittedly were not paid over to the company. The five indictments represent four customer transactions.*fn1
[ 190 Pa. Super. Page 448]
In one of the transactions defendant paid part of the funds received from the customer to the company in cash, and the balance by a check which failed to clear his bank by reason of insufficient funds. In three instances involving two customer transactions, defendant paid part of the funds to the company in cash, part by checks which were returned because of insufficient funds, retaining or suing the balance. In one transaction defendant paid part of the amount received from the customer in cash and failed to pay the balance.
All of the transactions involved in the indictments occurred in 1954. The indictments were returned on April 1, 1957.
Defendant first contends that the general criminal statute of limitations, Act of April 6, 1939, P.L. 17, § 1, 19 PS § 211, amending the Act of March 31, 1860, P.L. 427, § 77, is applicable, and that the indictments are barred because they were returned more than two years after the alleged offenses. The Commonwealth contends, however, and the court below determined, that the limitation of six years prescribed by the Act of May 16, 1945, P.L. 582, § 1, 19 PS § 213, was applicable, and that the indictments were therefore timely.
The amendatory Act of 1945, No. 238, 19 PS § 213, provides: "Indictments for felonies or misdemeanors committed by any officer, ... superintendent, manager, ... agent, employe ... of any bank, body corporate or public company, ... may be commenced and prosecuted at any time within six years from the time the alleged offense shall have been committed. The provisions of this section shall not be construed so as to apply to in those for any felony or misdemeanor other than as to which any of the foregoing relationships to a bank, body corporate or public company ... is an essential element of the crime." The six-year limitation provided by the Act of 1945 is applicable only when the
[ 190 Pa. Super. Page 449]
named relationship to the body corporate or public company is an essential element of the crime. Com. v. Parish, 176 Pa. Superior Ct. 267, 269, 107 A.2d 203.
Defendant was indicted for the crimes of embezzlement and fraudulent conversion. One form of embezzlement is defined by section 827 of the Act of June 24, 1939, P.L. 872, 18 PS § 4827, which provides: "Whoever, being an officer, director, superintendent, manager, receiver, employe, agent ... of any bank or other body corporate, or public company ... fraudulently takes, converts, or applies to his own use, or the use of any other person, any of the money or other property of such bank, body corporate or company, ... or belonging to any person or persons, corporation or association, and deposited therein, or in possession thereof, is guilty of embezzlement, a felony, ..." It is obvious that the relationship of superintendent, manager, agent, or employe of a body corporate or public company is an essential element of the crime as defined by the statute under which defendant was indicted. Anyone who did not stand in one of the enumerated relationships to a corporation could not be convicted under this section; clearly the six-year limitation applies. In Com. v. Parish, supra, 176 Pa. Superior Ct. 267, 270, 107 A.2d 203, 205, we said Speaking of the additional time limitation provided by the Act of 1945: "This obviously refers to such crimes as embezzlement where the corporate capacity of the accused is part of the nature of the crime. ... The purpose of this six-year provision is to give enforcement agencies more time to apprehend those who are in a peculiarly good position to conceal their crimes for periods longer than the average criminal. ..."
Judgment of sentence and convictions are reversed, and a new trial is granted.