Culp v. Commonwealth

Mr. Justice Sterrett

delivered the opinion of the court,

The first section of the Supplementary Act, June 12th, 1878, under which plaintiff in error was indicted, declares: “If any person being an officer, director, superintendent, manager, receiver, employe, ageut, attorney, broker or member of any bank or other body corporate, or public company, municipal or quasi municipal corporation, shall fraudulently take, convert or apply to his own use or to the use of any other person, any of the money or other property of such bank, body corporate or company, municipal or quasi municipal corporation, or belonging to any person or persons, corporation or association, and deposited therein or in the possession thereof, he shall be guilty of a misdemeanor: ” P. L., 196.

The indictment in this case contains nine counts, in some of which the defendant is charged with embezzlement as a municipal officer and also an employé, “ to wit: a clerk and receiving clerk in the employ of a municipal corporation, to wit: the city of Philadelphia, in a eertain department of the said city, for supplying gas to the said city, known as and commonly called the Philadelphia Gas Works; ” and in others, as “clerk or servant of the trustees of the Philadelphia Gas Works..” In each of the counts the embezzlement is alleged to be “ of the goods and chattels, money and property, of the said Gas Works.” The evidence, in support of the material ailegations in the indictment, was abundant. Acts of embezzlement, committed by defendant as clerk, receiving clerk and agent of the Philadelphia Gas Works, in the employment of the trustees of said works, more than two and less than four years prior to the finding of the bill,- were so clearly proved that the jury could have no doubt as to the facts. On behalf of defendant the court was requested to charge—

1st. That as defendant was not indicted within two years next after the date or dates when the alleged misdemeanor or misdemeanors are charged as having been committed, they must find a verdict of not guilty.

2d. That, in order to find a verdict of guilty, they must find that the defendant was an officer, employé or clerk of the city of Philadelphia at the time the alleged misdemeanor or misdemeanors are charged as having been committed, and proof that he was at that time an employe, officer or clerk of the trustees of the Philadelphia Gas Works, is not evidence of the fact.

3d. That, under the evidence, they must render a verdict of not guilty upon all the counts of the indictment.

The learned judge very properly refused to charge as requested, and submitted the case to the jury with proper instructions as to the law applicable thereto.

The main ground of defence was that the prosecution was barred by the general statute limiting the time within which misdemeanors (with a few exceptions) may be prosecuted, to two years; but if the indictment is properly framed under the ' section of the Act above quoted, and is supported by competent testimony, there is nothing in that ground of defence, because the 6tfi section of the Act declares that indictments for misdemeanors committed by either of the persons named in the first section “may be commenced and prosecuted at any time within four years from the time the alleged offence was committed.” The controlling question therefore is whether the defendant was a clerk, receiving clerk, employé or agent of a municipal or quasi municipal corporation, as charged in the indictment? The solution of this question depends on the relation existing between the city of Philadelphia and the trustees of the Gas Works. If the Gas Works constitute one of the agencies or departments of the city, similar to the Water, Health or Fire Departments of the city government, it follows that persons employed by the trustees, in tlie discharge of their duties, are employes of the city in the same sense and to same extent as persons employed by the Commissioner of Highways or the Chief Engineer of the Water Works. The fact that the trustees, to whose immediate management the Gas Works are entrusted, have special duties to perform in the interest and for the protection of those who advanced money to establish the works, does not make the Gas Works any the less an agency or department of the city. A municipal corporation is an agency established, directly or indirectly, by the State for the better administration of certain local affairs of a district, town or city; and whenever such an agency exists, it is justly termed municipal, whether its functions be lodged in a single hand or confided to various departments or bodies acting independently or as an organic whole. But it is not our purpose to further discuss the questions raised by the assignments of error in this case. They have been so fully and ably considered by the learned president of the court below in his opinion overruling the motion for a new trial, that nothing we could say would add to the force of his argument or the correctness of his conclusions. For reasons suggested and fully presented in that opinion, the several assignments of error are not sustained.

Judgment affirmed and record remitted to the court below for the purpose of execution.