# Commonwealth v. Shields

> Superior Court of Pennsylvania · March 1, 1912 · 50 Pa. Super. 1

URL: https://www.frixlaw.com/law-library/cases/6277496

## Case

- **Full name:** Commonwealth v. Shields
- **Court:** Superior Court of Pennsylvania
- **Decided:** March 1, 1912
- **Citations:** 50 Pa. Super. 1; 1912 Pa. Super. LEXIS 1
- **Precedential status:** Published
- **Opinion:** Dissent by Henderson
- **Judges:** Beaver, Head, Henderson, Mobbison, Orlady, Porter, Rice
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6277496

## Opinion text

Henderson, J.,
dissenting:
I am unable to concur in the opinion of the majority of the court filed in this case. The instruction of the learned trial judge on the subject of embezzlement and perjury had a tendency to, and probably did, mislead the jury to the prejudice of the defendant. The evidence was clear and positive that the several amounts alleged to have been embezzled were costs received by the defendant’s chief deputy and by him deposited in the bank where the sheriff kept his account in his name as sheriff. There was no evidence that the money was not there at the time of the arrest, at the time when the indictment was found or at the time of trial. That the sheriff had a right to deposit the money received by him or to authorize *26 his deputy to so deposit it in his official name in a responsible bank cannot be questioned. This had been done by him during his term of office in the case of very large sums of money and no criminal inference could be drawn from that fact. On the contrary, the depositing of money in his name as sheriff was a prima facie declaration at least that the fund so deposited was held by him in his official capacity. The evidence that he had checked out of this account money for personal uses did not tend to show that he had embezzled what remained in the bank, for it was shown without contradiction that he deposited his own money to a considerable extent at least in this account. The court charged the jury that they could consider the placing of these items of costs in the bank to the credit of the defendant as sheriff as evidence of embezzlement and in the supplemental charge the same instruction in substance is repeated. The jury had failed to agree after having been out several hours and the court was requested to give additional instructions on the subject of embezzlement and perjury; whereupon, the court gave the following instructions to the jury: “The question is not simply whether the evidence satisfies you that this money was appropriated to his own use. That fact would not be difficult of ascertainment — it, in fact, was appropriated to his own use when it was put in the bank — but did he know that it was there? Did he know that it was being put in the bank? That is the issue of fact, and that is about the only issue of fact that there is, on the question of embezzlement. It is as easy to see that the money has been misappropriated, when it is put in the bank, as it is to see it if it was kept in the sheriff’s own pocket. It is an improper use that has been made of it — a use that he had control of, and he alone had control of.” It is difficult to see how the jury could have received any other impression from this instruction than that the fact of the deposit of this money in the bank by the sheriff’s bookkeeper and deputy if with the knowledge of the defendant was sufficient evidence to support the *27 charge of embezzlement. These sums of money were received from time to time by the deputy and presumably deposited from day to day as they came into the deputy’s hands. To hold that this is an act of embezzlement is not in harmony with any statute creating the offense to which our attention has been called. There is no evidence that any demand was made on the defendant by the accounting officer of the county for payment of this sum or that it was actually taken from the bank or that it was applied to any purpose of the defendant and the jury would be very naturally led to the conclusion that if an embezzlement was made it existed in the depositing of the money in the bank. The instruction quoted was a last word to the jury on this subject and as there was confusion or misapprehension on the part of the jurors as to what had been said in the very long charge of the court at the conclusion of the trial this must have had a very decisive effect on the minds of the jury in inducing them to reach a conclusion on this branch of the case.
The charge of perjury contained in the indictment arose out of the affidavit made by the defendant to his statement of account for the month of January, 1911. This statement was made up by his bookeeper and chief deputy, Mr. Hoke, who had occupied that position during the term of the defendant and for several years prior thereto. The defendant did not keep the books in his office and was not familiar with the details of the accounts as stated by him and Mr. Hoke, and the evidence on this point is not contradicted. All of the monthly reports were made out by Mr. Hoke and this officer had charge of the accounts in the office, had possession of the bank book, made deposits and drew the checks in practically all of the transactions of the office. The defendant alleged that he inquired of his deputy when signing the monthly reports whether they were correct or not and that relying on this information he sent them to the controller. On this state of facts the question was not simply whether the report was correct or not but whether the *28 defendant acted in good faith and upon a reasonable belief of its accuracy. He might not absolutely know that it was correct and yet have such confidence in the experience and integrity of his bookkeeper and accountant that he would make affidavits to its correctness to the best of his knowledge and belief as was done in this case. But this would not constitute perjury. It is within the knowledge of us all that a vast amount of the official business that is transacted, both public and private, involves the statement of accounts and the making of reports the details of which are not within the knowledge of the persons making them. They must rely on the accuracy and faithfulness of subordinates in such cases and when they do so in good faith they are not to be charged with perjury if it appear that some items which should have gone into the account had been omitted or others are not exactly stated. The rule stated in 1 Russell on Crimes, 666, is that evidence is essential not merely to show that the defendant swore falsely in fact but also as far as circumstances tend to such proof to show that he did so corruptly, willfully and against his better knowledge. This is the doctrine also of 1 Hawkins P. C. 429; Rex v. DeBeauvoir, 7 C. & P. 17, decided by Chief Justice Denman; 3 Stark. Evid. 860; 11 Bishop, Crim. Law, sec. 396; U. S. v. Babcock, 4 McLean, 113 ; Com. v. Brady, 71 Mass. 78 ; U. S. v. Shellmire, 1 Baldwin, 370; 2 Whart. Crim. Law, sec. 2199. It was decided in the court of oyer and terminer of Philadelphia county in Com. v. Cornish, 6 Binney, 249, that a defendant might be convicted who had deliberately sworn to the identity of a person who was shown not to have been at the place nor connected with the transaction to which the affidavit related. But this case was put on the ground that it is perjury if a man swear willfully and deliberately to a matter that he rashly believes, but which he has no probable cause for believing; and is so interpreted in Steinman v. McWilliams, 6 Pa. 170, 178 , in which case the court refers to Com. v. Cornish, as “clearly adopting the view of *29 Sir William Blackstone that there must be the malo animo, the scienter of falsehood or a reckless rashness which is its equivalent. It was proper for the court to have added these explanations to the naked definition given; and for want of them the jury may have fallen into error in supposing that swearing willfully and falsely by mistake or surprise was perjury.” And it is into the same error that the jury probably fell in the case before us, for a part of the instruction in the supplemental charge was “or if the witness swears to a thing that he does not know whether it be true or false and says that it is true that would be perjury.” And in the same connection, “One who swears that a thing is true to the best of his knowledge and belief conveys the idea that he has knowledge and that belief is founded on that knowledge. Where he has an opportunity of knowing the truth and does not avail himself of it, but makes an affidavit without probable cause he can be held guilty of perjury. In any of those cases the affidavit is willfully corrupt.” No reference was there made to the circumstances justifying the sheriff in placing confidence in his deputy nor instruction that if he, in the honest belief that the report was correctly made up, attached the affidavit of its correctness according to the best of his knowledge and belief he ought not to be convicted of perjury. The charge would give the impression to the jury also that it was the duty of the sheriff to know that his deputy had correctly stated the account and that to make the affidavit without this personal knowledge would amount to perjury. It is doubtless true that a person might make an affidavit with that reckless rashness which is the equivalent of a wicked mind as stated by Mr. Justice Colter in Steinman v. McWilliams, but that does not include cases of swearing by surprise or mistake as is shown in that case. When, therefore, the jury had disagreed as to the subject of perjury and asked for further instructions it was the duty of the court to present the defendant’s side as clearly and fully as that of the commonwealth, for this was the stage *30 of the case when the charge of the court was impressive and most effective. The tenth and twelfth assignments should therefore be sustained.
I would also reverse on the seventh and eighth assignments of error. The evidence covered by those assignments related to independent transactions not shown to have been engaged in by the defendant nor to have been known by him. True, they related to business which passed through the sheriff’s office but not necessarily through the sheriff’s hands and in order to give to the testimony the effect claimed the commonwealth should under any circumstances have been required to show that the defendant knew that the items of costs had been paid.
Morrison, J., concurs in the dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6277496. Public record. Not legal advice.