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COMMONWEALTH v. BURNS (06/12/62)

June 12, 1962

COMMONWEALTH
v.
BURNS, APPELLANT.



Appeals, Nos. 26 to 38, inclusive, April T., 1962, from judgments of Court of Quarter Sessions of Cambria County, Sept. T., 1960, Nos. D-73 to D-67, inclusive, D-65, D-64, D-61, D-59, D-58 and D-57, in case of Commonwealth of Pennsylvania v. Frank Joseph Burns. Judgments affirmed; reargument refused July 5, 1962.

COUNSEL

Vincent M. Casey, with him Arnold D. Smorto, and Margiotti & Casey, and Smorto & Creany, for appellant.

Ferdinand F. Bionaz, District Attorney, with him W. Louis Coppersmith, Assistant District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 198 Pa. Super. Page 210]

OPINION BY ERVIN, J.

The appellant, Frank Joseph Burns, was convicted by a jury under 13 bills of indictment, each charging the crime of embezzlement under § 822 of the Act of June 24, 1939, P.L. 872, 18 PS § 4822, which reads as follows: "Whoever, being an officer, employe or agent of this Commonwealth, or political subdivision thereof, charged with the collection, safekeeping, transfer or disbursement of public money, converts to his own use, in any way whatsoever, or uses by way of investment, in any kind of property or merchandise, any portion of the public money entrusted to him for collection, safekeeping, transfer or disbursement, or proves a defaulter, or fails to pay over the same when thereunto legally required by the person authorized to demand and receive the same, or aids or abets or is an accessory to any such act, is guilty of embezzlement, a felony. ..."

Defendant had been superintendent of the Cambria County Home for the Aged for many years prior to and including the years 1957, 1958 and 1959, which were the years covered by the 13 indictments. It was the policy of the county to require such patients at the County Home as were financially able to reimburse the county either in whole or in part for the cost of their care and maintenance. According to the testimony of one of the county commissioners it was defendant's duty, as superintendent, to investigate whether patients were able to pay and if so, how much. He was to determine ability to pay, to make a charge accordingly, and he had also been given authority to collect these

[ 198 Pa. Super. Page 211]

    support payments from the patients and turn them in to the office of the county treasurer, who was likewise the treasurer of the Cambria County Institution District under which the County Home operated. The Commonwealth proved and defendant later admitted that during the three years covered by the bills of indictment he collected for the use of the county from the 13 patients referred to in the 13 bills of indictment the sum of $9,560.00 and that of this sum he transmitted to the county treasurer the sum of $3,390.00, leaving the sum of $6,170.00 paid by the patients for the use of the county but not paid over by defendant to the county treasurer. Defendant took the witness stand, admitted having received the amount of money alleged by the Commonwealth and his failure to turn over $6,170.00 to the county treasurer. His defense was that he did not convert this sum of money to his own use although he admitted having deposited it in his personal checking account out of which he drew checks for his own purposes. He contended that he used none of the money collected from the patients for his own purposes but spent it for the benefit of the patients in purchasing for them extra clothing, tobacco, cigars, candy, etc., and for the use of the county for such items as disinfectants, mattresses, furniture, shrubbery, floor finishing, and many other items which the county otherwise would have been required to purchase out of other county funds.

Counsel for appellant first contends that he was not an officer or employe charged with the collection, safekeeping, transfer or disbursement of public money and that the judgment of conviction should have been arrested. While § 822 uses the language "charged with" it is important to note that the words "by law" are not contained anywhere in the section. The evidence clearly reveals that the county commissioners had charged Burns, as superintendent of the County Home, with the

[ 198 Pa. Super. Page 212]

    collection of the support payments from the patients and had directed him to turn it over to the county treasurer. When collected from the patients the money became public money.

Certain courts take the position that statutes providing for the collection of public money are penal and therefore should be strictly construed. Other courts have emphasized the necessity of construing such statutes broadly enough to serve the public purpose of protecting the public interest. In this connection we repeat with approval what was so well said by President Judge GEORGE W. GRIFFITH for the court below: "The first position is exemplified by the case of State of Nebraska v. Boatman, 7 N.W.2d 159, wherein the court said that a deputy or a clerk in the County Treasurer's office may not be prosecuted under the statute prohibiting the embezzlement of public moneys because he was not 'charged by law" with the duty of collecting and disbursing such moneys. This court was of the opinion that only such persons who were designated by a statute to have charge of public moneys were amenable to prosecution. In its opinion, the court called attention to the fact that the State of Ohio had a similar statute and in the case of State v. Meyers, 47 N.E. 138, its courts came to a similar conclusion. Defendant also calls our attention to Ex Parte Huston, 147 P. 1064, and State v. Bolin, 110 Mo. 209, 19 S.W. 650. In the latter case, however, the defendant was neither charged by statute nor by any appointing power to collect the public moneys but obtained possession thereof by falsely representing that he had such right.

"On the other hand, the point of view of those courts which find that it is not necessary that a defendant charged with the embezzlement of public funds be so charged by statute was expressed by the Supreme Court of Indiana in the case of Kops v. State, 42 ...


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