*1 interlocutory listed one aggrieved party wag from the to take away intended It orders. interlocutory control an power traditional court its final of a order. entry to the order prior cost. appellant’s affirmed at Order Commonwealth, Appellant. Bovaird, *2 reargued Argued November March 1952; Before Stern, Chid- Jones, Bell, C. Stearne, J., 1952. and Musmanno, sey JJ.
reargument re- 1953. fused March 24, Super. Superior Ct. 596. 169 Pa. Court:
Same case Casey, Margiotti, him Vincent M. J. with Charles Margiotti Casey, and McDowell & J. J. & McDowell, appellant. McDowell, McVay, Deputy Attorney, for P. District
William appellee. February Justice Chi
Opinion Mr. dsey, 1953:
Defendant convicted and on in- was sentenced four charging §834 dictments fraudulent conversion under of The Penal Code 18 PS on two §4834, charging indictments §824 under of the embezzlement appeal judgment §4824. 18 PS This Code, from the Superior Court which sustained the convictions. upon theAt trial of the case, conclusion taking testimony, a defendant moved for' directed for the verdict that the reason had not Commonwealth prima a, made out that the indictments for case; facie “repugnant” fraudulent conversion were to those for legally impossible embezzlement; was for the proof charged; under offense to be both the'crimes proved charged and that the Commonwealth had not as set crime forth the sections of Penal Code under which the indictments were drawn. The mo- jury tion and after had found overruled, guilty all of defendant on the same indictments, judg- raised in contentions were motions arrest raising for a trial, ment and the latter new addi- pressed question separately tional here and hereinafter considered. July adduced
The Commonwealth evidence that on agreement 1934, written headed nota “Cotenancy Agreement” tion entered into de *4 Margaret and then fendant his C. wife, and Bovaird, (now M. John J. Carter and his Beth wife, Carter Beth prosecutrix). agreement M. The Putnam, up by attorney John J. and brother Bovaird, drawn part parties in It recited defendant. were together to in be associated as tenants said common, cotenancy Company, & to be known as Carter for the acquiring operating petroleum purpose and for and properties gas, natural certain tracts land Mc- proportionate County, Pennsylvania; Kean of each of in- share said “cotenants” one-fourth terest. agreement provided
The further that the defendant, respects manage, would “. . all . . con- Bovaird, . . operate ample and trol full and said with as authority power and if he unrestricted as were sole owner thereof “be . . . and he was to service” paid monthly.” [later sum of hundred dollars two any increased to Carter at $250]. was “. . . entitled, [might] time he . . . so Carter & desire, work Company” stipu- and he did so later on “at work per lated [like- sum hundred dollars month two increased under wise the direction of the $250], Agent, George the aforementioned . . .”. Bovaird, Jr., agreement provided: “Paragraph 4. All oil also produced pipe . run . . shall be and credited line to George Agent, the said and at his dis- Bovaird, Jr., from cretion, time so time, sold, paid up obligations, realized him out to take com- pany expenses operations. notes and current of said accordingly George The said author- Bovaird, Jr., deposit special company ized to bank to a ac- moneys all so realized from sales oil as afore- count, Paragraph Upon and to said, issue checks thereon. 5. complete payment expendi- major notes and interest, any, obligations, tures, contracts and other incurred if operating properties in the course said and reim- bursement initial installment other advances George the said cotenants, Bovaird, aforesaid shall thereafter remit Jr., the several cotenants, proportionate profits their of the net shares said and all business at times shall exhibit to the several cotenants books of account which his receipts regularly and disbursements shall be entered.” (Emphasis supplied).
52 in to the money enterprise contributions only Mrs. (formerly Carter) made Beth M. Putnam by were an initial instalment of which furnished $30,000 who acquisition was used as down one properties subsequent $27,- two instalments, addi- in on account of of an acquisition 500 used tional and another of later supplied property, $10,000 her could not company pay at a time when Thus Mrs. Putnam’s ad- very pressing obligation. totalled $67,500. vances died in the fall of 1934 and C. Bovaird
Margaret in in cotenancy her death her interest upon vested her father as George Bovaird, Christie with his son, Marital differences arisen having trustee. between Carter obtained a divorce and 1943 Mrs. Carters, took from one-fourth assignment her husband his enterprise. interest re-
Of the monies so advanced Mrs. Putnam she a total of While back by payments $9,500. ceived several (at remained obligations company unpaid time of the trial amounted to and re- they $300,000) Putnam’s “initial imbursement Mrs. installment other had not been advances” made, defendant, made nevertheless withdrawals George Bovaird, Jr., out of the amount of In operating profits $235,000. account of capital books the defend- company’s the cotenancy for the ended December period ant an overdraft of The ac- showed $196,704.28. Bovaird, count of showed credit George Jr., trustee, and the account M. balance of of Beth Put- $46,345.32; nam a balance her $127,690.67 showed favor which her share and the bal- represented operating profits her. due The defendant actually ance advances drew salary in cash above his over $235,000 bank account for his personal own use. placed *6 §196,704.28 overdraft credit for a one- of reflects share of quarter the profits.
Mrs. Putnam took no part who the management of enterprise and who after her first marriage the fall of 1934 did at Bradford live the busi- where ness carried was testified that from on, time to time she of made requests defendant for of distribution funds but other than the above she §9,500 mentioned, received On nothing. several occasions defendant told her “Everything is we are of going fine, making lots “. . . but is no money there for money.”, distribution.”. The defendant testified that himby withdrawals were authorized Mrs. Putnam. by His son, George on Christie testified his Bovaird, father’s behalf that he knew of his father’s withdrawals and acquiesced them. divorced Carter, Mrs. Putnam’s also husband, on testifying defendant’s said behalf, the under- was that withdrawals to be standing were made those for who asked them. Mrs. Putnam testified that she did that defendant not know making withdraw- als in and had not authorized them. question The jury Mrs. and a apparently believed of Putnam, reading record they justified entire us persuades were so and in finding defendant not author- doing ized make the withdrawals.
The indictments were founded on specific withdraw- als within statutory period prosecution. made for Each of the for four indictments fraudulent conver- separate sion related transaction and covered date all amount, different and of them in sub- and charge stance are same that defendant being Carter agent “. . . an of and and Company as such of being entrusted the safe agent custody monies, and of accounts said Carter and properties Company, and unlawfully did . fraudulently, feloniously . . with- to his convert and a cer- appropriate own hold, use,” being Carter and “. .'. funds tain sum Company drawing Company, by a check Carter company Citizens'Na- in the . on the account of said . . payable [himself], tional Bank of Bradford proceeds" using check ... said thereafter . .”. use . benefit, own provides in 834 PS Code, Section §4834,. having: pos having part or received that: “Whoever, any capacity any or manner, or means session, any any money property, or kind whatsoever,' any person, .belonging other other *7 fraudulently person receive and- is entitled to have, any part applies or- or withholds, same, converts, any part proceeds, proceeds or of- the or the thereof, to; disposition thereof, from the or other sale derived and for the usé and or to benefit, and for his own use person, guilty any of a of othér felo and benefit is supplied)-. (Emphasis ny, is a-" The re . . .” section May of the P. L. 241. Act of enactment charging indictments embezzlement also" The two- separate occurring respectively relate to transactions involving and different amounts on different dates charge and in are the that- defendant substance same Company being agent . of . . an Carter and and “. .. custody agent being of the entrusted safe as such properties belonging money, to Carter accounts and Company, of Beth M. and Putnam was entitled unlawfully, a one-half share interest. . . did , feloniously fraudulently apply and and convert take, money, use” certain sum of “. . . own a said being Company.” property -Carter and (Emphasis supplied). provides 824 in
Section PS Code, 18 §4824, being part attorney, that’: a “Whoever, banker, broker, being agent, or: safe merchant cus- intrusted, any property tody, person, other and, with with pledges, negotiates, sells, intent defraud, transfers, any appropriates or for or in manner or converts any prop- person, use the use- his own other part guilty erty, is of embezzlement, thereof, felony . . is a substantial reenactment section §114 of of March P. L. PS the Act 31, 1860, §2481. argued by appellant
It a cotenant of as Company fraudulently Carter & could not convert property cotenancy or embezzle in all of which part ownership. had an Much of the undivided he. argument this, theory in on connection relies cotenancy applied lav/ to real civil law. The criminal law is controlled arguments analogies civil law while from the and, may determining law civil ship the relation- value parties of-the- re- as between themselves spect question, to the the final determina- precepts of this case tion must lie of the crim- n inal law, the enforcement of which the Common- party. private wrong wealth interested A when public wrong. made a criminal offense becomes More- while textbooks and other over, . authorities relied on *8 generally the defendant state that a cotenant who possession property takes of the common can be sub- jected only accounting, to an action for a distinction is made where the is in divisible character. Cotenancy, in 14 Thus Am. it is Jur., §71, stated: “It general is a rule that in trover will lie favor of against possession one cotenant another who has taken property, of the common it can unless be shown that appropriate did an so with intent latter to it to deprive plaintiff or -himself otherwise to of its use theory or This doctrine is based on value. right possession
foundation of the action- that, persons equally where two more are entitled
to possession, the one has it who cannot be guilty a conversion it. But the rule can have retaining no reasonable application that are respect things readily divisible into portions alike absolutely quali- ty, as etc. grain, money, As such things, general that an view is action will lie whenever a co- tenant possession more than uses his or re- share fuses to permit his cotenant to take his proper moiety. . . .”. In Stitt v. 136 Pa. Ct. Felton, Superior 7 A. 2d Court the fol- Superior adopted lowing of this language Court Agnew Johnson, 17 Pa. “. . 373, 378: . ‘The why reason one tenant joint or tenant in common cannot maintain trover against that both companion, is, are entitled to equally pos- and the session, of one possession is the possession and is both, accordance with the of both. But right where one misuses the joint property by appropriating it to uses which it was not designed, for refuses apply purposes which it was held by for or if both, one delivers to a wrongfully for stranger, purposes inconsistent with the for uses which it was and such designed, stranger denies title and claims the other, exclusive possession the reason of the ownership, rule and trover ceases, may maintained.’”. (Emphasis supplied). we are not Furthermore, dealing here awith simple pure cotenancy which most of the authorities cited defendant are applicable. Unlike the part- relation nership where each partner automatically be- comes the agent the other partner, agreement required for one cotenant to become an agent and such an others, agreement creates an additional relationship different and from apart the relationship in common. owners A reading in- agreement volved shows clearly “operating petroleum and *9 natural was the gas” of principal purpose the associa- parties, “acquiring” tion of the and the of real estate necessary prerequisite. may but a In this connection it properties be noted that title to later ac- some quired improperly by taken defendant his own agreement agency predominantly name. The created an relationship under which the defendant Bovaird was manage enterprise operate of all parties “Cotenancy Agreement” thereto. The label change relationship by could not the actual disclosed agreement. the terms of the The defendant’s status, merely therefore, was not that of a tenant common ordinarily relationship by operation as the arises example, acquisition law as, the case of of real by grantees. specially estate several His status was by agreement parties. fixed between Under it he primarily agent became a co-owner he became the salary for the other In co-owners. consideration paid management for his services he undertook the enterprise prescribed agree- under terms by all of which he ment, was bound. One of these gross terms was that none of the income of Carter & Company should be distributed to of the associates payment company obligations until after the repayment expenses, by advances made provision grossly by ap- cotenants. This he violated propriating own $235,000 his use. It was virtue solely employment agent of his as and not reason right possession his cotenant that he into came charged converting of the monies embezzling. right posses- had He no immediate agent.1 sion as cotenant to these monies received qua only $235,000 The defendant had an interest in the sum of appropriated by him, being received and such interest share profits upon accounting by agent. larger him as Much the part represented appropriated of the sum so the interests of the other cotenants. *10 defense of his
The defendant relied as an element
upon
powers
agent
granted
the terms
him as
under
the
agreement.
disregard the restric-
But he would
agent.
imposed upon him as such
and trust
tions, duties
doffing
wrap
escape
liability by
the
He
criminal
cannot
donning
garment
agency,
making, and
a
of his own
cotenancy
legal
cloak
fictional
attribute.
the
with its
placed by appellant
Much
on the case
reliance is
Superior Ct.
of Commonwealth v.
130 Pa.
Mitchneck,
Mitchneck
The case Commonwealth Pa. Su Hazlett, perior support- appellant, Ct. cited instead of ing expressed. is in accord him, with views above private a indicted defendant, There banker, receiving May under the Act L. P. 9, 1889, depositor knowledge from a that his bank reversing In was insolvent. the lower court, Su- perior Court held that the defendant banker could in only defense not he show that was solvent at the time deposit, he received the to rebut criminal but, intent, could that he he show believed was This is solvent. exactly charged pres- in essence what the court in the ent case, that the i.e., defendant Bovaird entitled acquittal right if had to make the withdrawals right. or if he believed he had in Neither the con- Superior clusion reached Court the Hazlett any language opinion nor case used in the ability was it declared that a defendant’s intention repay constitutes a defense. Superior opinion present Court its in the properly disposed appellant’s case contention that repug- for fraudulent indictments conversion were nant to those for embezzlement when it “. said: . . it point is sufficient to out that each indictment relates separate to a and distinct transaction further- and, specifically provides §834 that ‘The more, offense specified may joined section be in the same bill felony of indictment with other misdemeanor arising may out of the same transaction, there many included the same indictment counts as separate there are and distinct misdemeanors hereunder against person.’ committed the same Since each of the single could offenses have been covered in indictment containing charging §824 two one violation counts, the other a violation indictments §834, were *13 ‘repugnant’ prejudiced any nor not defendant in was way by having charges separate in the laid indict- It the follows that Commonwealth ments.”. was not to elect for embezzle- required prosecution as between and the de- ment fraudulent conversion as claimed A prosecution fendant. fraudulent conversion has received brought against . . is one who properly and fraudulently afterwards capacity an for a differ- even indictment misapplies though it, under the statutory ent offense would have been proper 158 Pa. circumstances.”: v. Schuster, Commonwealth 44 A. 2d The fact that Ct. 303. Superior 167, been drafted conversion) may have (fraudulent §834 not embracing falling for the situations purposes does not (embezzlement) the provision within §824 facts under on a set of specific indictment preclude Nor is merit con- of these sections. there either sufficiently spe- indictments were not tention that Act of P. 11 of the March L. 31, 1860, cific. Section “Every indictment shall be 19 PS provides: §261 in law which sufficient adjudged good deemed substantially the language the crime charges . .”. . crime, of the assembly prohibiting act the crimes charged unquestionably indictments here Act of Assembly language substantially not be that defendant apprised it cannot said meet. It that required he had to charges matter of proof forth which were be facts set therein in Commonwealth Wooden, trial. As at the said 455: “The Criminal Proce- Ct. 452 at p. Superior Pa. P. provides March L. 31, 1860, dure Act of adjudged deemed and suf- shall be indictment every crime sub- charges in law which ficient and good assembly pro- act in the stantially language day the trend of decisions it. Since that hibiting sustaining an has been toward Court Supreme of our if charge stated substance, as good indictment defendant know what may certainty may and the court know answer, upon called
63
to
thereon. Criminal
judgment
how render
proper
no
once
the technical
was
pleading
longer
thing
to
justice
look
than
courts
more to substantial
artificial
Pa. Superior
Com. v.
91
nicety:
Romesburg,
Ct.
Pa.
Ct.
Com.
559; Com. v.
87
Norris,
Superior
61;
Keenan and
On petition attorney stating district to dis- result a serious illness he unable charge office, appointed duties of court Robert B. Bar of McKean a member Apple, before “. . . the Commonwealth County, to represent Sessions, the October grand petit juries, during October expire . . . appointment said in accord- term Court.”. The made appointment was of the Act III, ance with the of Article provision §260 P. May provides: L. 16 PS 2, 1929, §260, “In appointed case no any regularly where there is in case of sickness assistant district if attorney, from shall attorney other cause the district of the term unable to the duties and business attend to competent attorney of a some may appoint court, to act of the court, with the county, approbation for no longer period.”. as his for one deputy term, record Beth M. Putnam, Apple attorney had entered a confes- case, prosecutrix present Putnam and against of Mrs. judgment sion favor in the No. 214 October Term, the defendant at Before the trial McKean County. Common Pleas the indict- quash in a motion commenced defendant Apple void because they were ments, alleged indictments to the from presenting disqualified defend- doubtful whether extremely It is jury.3 grand Apple 4, 1950. on October returned were The indictments case which represent the trial of the at the Commonwealth did December, 1950. occurred judgment ant’s motion arrest of be construed may include as reason therefor the of the court refusal to quash. the motion find grant However, below we no merit in the contention that the indictments were In void for the reason its the Su- opinion asserted. *15 perior Court that pointed attorney’s out the commission of included the confessed did not $1,500 judgment the belong attorney citing Com- client, monwealth Loan 127 Pennsylvania Pa. Corporation, Ct. A. Superior 193 141. whether However, or not other Apple received this commission or fee from for Mrs. Putnam services there was transaction, no evidence that he her at the time he acted represented as district attorney the deputy October Ses- sion of the court when the indictments this case were found. anwas officer of Apple the court as member of acting the bar was officially and specially the court. Defendant did not claim that exer- Apple upon cised or in improper grand jury influence from way deviated of proper performance his duties in this The defendant regard. would have misconduct inferred or of presumed because his representation on a prosecutrix To previous occasion. subscribe to such contention mean would that no district attor- act could in a ney case where had sometime in the represented past prosecutor private liti- ipso gation. disqualification Such is not justified. facto After carefully reviewing the record in this case and all of considering by contentions advanced defend- no we find reason to disturb the outcome. The de- ant, fendant represented throughout able counsel. The trial fair charge judge eminently impartial. judgment Superior Court is affirmed.
Dissenting Opinion Mr. Allen M. Justice Stearne:
The majority Superior like those opinion, Court and trial which court, question avoids the keystone of the the “other viz.: defense, who was person” from whom defendant took property?
Defendant was on four charg convicted indictments ing fraudulent conversion and indictments charg two ing embezzlement. The language appro plain priate are sections the penal code, quoted verbatim in the majority require so opinion, clearly taking another’s of each as an element crime superfluous authority. almost to cite President Judge said a unanimous court Keller in Commonwealth v. Ct. Mitchneck, Superior 130 Pa. A. 433, 435, 198 463: “The the offense fraudu gist lent conversion is that the defendant received into has *16 his the possession or money per of another property firm son, or corporation, fraudulently withholds, converts or the to or for own use and applies same his or to the use and benefit, benefit other any person than the one to whom the or money belonged. property If so withheld or the defend to applied ant’s use and did not to some other benefit, etc., belong but was the person, defendant’s or etc., money own property, though even obtained borrowing money (Com. v. 79 Pa. Ct. Bixler, Superior 295), pur chase on credit the property (Com. 84 v. Hillpot, Ct. Pa. Superior 454; Com. 106 Pa. Su Overheim, perior Ct. 162 A. not 475), offense has been committed. ‘Whatever have been may the intention the enactment of legislature the statute under which the indictment case drawn, intended criminal clearly not to make act of one and it is who sells own property, to so ap an an as to make it effective substitute for action plied 66 su debt’: Com. v. Hillpot,
at in the collection law p. 458.” pra, received
The defendant capacity status which misappropriating which he is with charged owned such totally question irrelevant who had assert that “He money. majority [defendant] these no cotenant right ownership immediate no make effort qua, they monies received agent”, other anyone decide did If ownership. have its who then the indict- than the the money, cotenants owned defend- they charge ments are because fatally defective Un- Company.” ant of Carter and taking with “funds der defendant cannot be convicted such indictments, to Carter and funds did not taking belong Company. to Carter
On the other if the funds did belong hand, faced squarely then we are Company, a man question misappropriates money, whether who one-fourth inter- all of which he has undivided All au- person. of another est, taking thority negative. with an unqualified answers “A prin- C. J. sec. 8: fundamental Embezzlement, S., steal his that one cannot ciple of the common law is is that rule, own and the property, general therefore, been ownership property alleged either in whole or embezzled must not be in accused, part. Practically . . .” same (emphasis supplied) (12th ed.) at Wharton’s Criminal Law appear words 1597. p.
In In
201 Pac.
re Lon
While no we have direct for this rule in very Pennsylvania, Legislature thought fact that the necessary partner- to make fraudulent conversion ship property separate (Act crime of June 24, 1939, 4835) P. L. feeling sec. PS indicates the partner that a in the absence of statute could *18 not be found under the fraudulent con- guilty general (The statute. indictments under original version statute partnership above were withdrawn because concluded that attorney district this business relation- a not but a ship partnership cotenancy). only for a for requiring separate reason statute em- possible partnership is that taking part- bezzlement funds a not be nership partner taking would property, of another. similar Exactly com- reasoning conclusion that cotenant not pels taking prop- of another when of the erty misappropriates funds If conduct is to deemed cotenancy. criminal, made new by legislation by it must be so not an of an criminal existing construction statute. expansive be as may true it stated majority However no longer the technical pleading thing “Criminal . . it remains the law that penal it once was stat- .”, construed: Act of strictly May are to be utes 46 PS 558(1). 58(1), P. L. sec. but not of the conceding, propriety
Assuming, conclusion that the rules law painstak- majority’s are in actions real relating developed ingly I in criminal find no cases, precept followed not to be incarceration criminal law which authorizes own money which stealing a man gross an interest. However defendant’s viola- he has agent may they duties as were been, of his tions statute rule of law this criminal under testimony I read this its entire- As Commonwealth. me that this should be but civil case appears ty, if where accounting, equity’s decree, equity in personam,. be enforced could necessary, I I dissent. would reverse reason, For and order de- learned courts below judgments discharged. fendant
Dissenting Opinion Mr. Musmanno: Justice says that on no our books There is statute *19 affirming George In did a crime. what Bovaird majority of Court this in the conviction this case, my opinion, unprecedented, in an has taken an and, majority quotes step. opinion Sec- The unwarranted and italicizes certain tion 834 of the Criminal Code having having received or words as “Whoever, follows: possession, any capacity by any man- in means or or any money property, kind or whatso- ner, gone fur- italicization But the should ever,—” person. belonging any other . .” ther —“of person? Who is the other The indictment mentions Company. Company Carter and If Carter & were corporation person apart and as from artificial persons who owned the the indictment would stock, Company corporation but Carter & not a valid, person: cotenancy cotenancy, or another It is and a separable compose is not from the it. members who Our are law books filled with statements the effect property that a co-tenant is a co-owner all the which subject co-tenancy. is the majority opinion says: argued by ap- “It is pellant Company that as a cotenant of Carter & fraudulently could not convert embezzle cotenancy all of he had an undivided part ownership. argument Much of the connec- theory cotenancy tion on relies the law of applied to real in the criminal civil law. The private is not controlled civil . A law law. . wrong public when made a criminal offense becomes a wrong.” majority But the fails to note that reference must be made order to ascertain to the civil law proceeds had in the what interest the defendant co-tenancy and determine a crime was thus whether part proceeds. accepted of those committed when he private wrong It is true that a when made a criminal public wrong, offense becomes a but there has been no adjudication private that what Bovaird did was a wrong, assuming, arguendo, but, that it no crim- was, private inal . wrong statute has made that a crime. treating Instead of the civil law as little' conse- quence compelled go' in this arewe to the cáse, civil absolutely primarily rights to establish law parties. One cannot steal from that if so oneself, co-tenancy Bovaird was entitled law from the draw no crime been assets, has committed. That funda- . mental. subject
An examination of the civil on the law dis “relationship tenancy eo closes limine that by implication, *20 common does not create, even rela the principal agent, of tion and and does of make not, itself, partners”; the cotenants 62 C.J. Sec. 419, 22; Caveny v. Curtis, et 257 Pa. al., 853. 575-580, A. majority opinion goes say
The on to that: “The merely defendant’s not status, therefore, was that of a relationship ordinarily tenant in common as the arises by operation (the agreement) of law. . . Under it he be- primarily agent came á co-owner but he became the solely the other . . It co-owners. was virtue of his employment agent right as and not reason of his possession a cotenant that as he came into of monies the charged converting embezzling. which he was with- right possession He had no immediate of as cotenant qua agent.” to these monies received Here the ma- jority ignore the would defendant’s status as co-owner. Company of & As a cotenant Carter therefore possession property, George of all of its Bovaird was agent. principal, a not an As he was a cotenant and therefore of an owner undivided interest the. entire agent he could not be an for himself. He could time; principal agent at the not be same agent description only the defendant as of The agreement cotenancy oil to be that were the runs George Boyaird, pipe as Jr., line credited agent. provide agreement oil did not operated by produced co- from the lease would be tenancy pipe lines to be into the should delivered separate rather cotenants, account each of the pipe credit in the lines to the to be delivered was necessarily required cotenancy, and as someone was George receipt production, for the receive agent. designated Boyaird, Jr. But that does was as not mean that his conduct of business pipe capacity lines, The oil in the co-tenant. placed into in the bank account converted cash and Company agreement, provided in & Carter as the'Original cotenancy as much the leaseholds. page on and Gas” sec.
Mills “Law of Oil in common land states: “Tenants who Mills joint in common thereon are tenants executed lease royalty.” in the agent not a mere the defendant therefore was
Since guilty held under Sec- could not be embezzlement of the Act of 18 P.S. 4824. tion 824 guilty held could the of fraudu- Nor defendant tenancy property conversion because lent equal hoary age each tenant has rule *21 possession right the That to the of whole. rule stated p. as follows: “A tenant 30, sec. C.J., part possession every in the of has interest common property, of the estate of and from the nature the necessarily possession has of and be in the whole must occupy property right of the the common to whole the ejected every part oc- and cannot be thereof, and of the cupying than be share more would what possession rights premises partition; to nor can the on which all premises, tenants in common of the are entitled to as between be af- themselves, fected by the of one acts another dispossessing force or fraud.” it Thus can be seen the that co-tenant’s right to the possession entire subject matter of is so cotenancy strong and lasting even where he takes possession more than his proportionate share he cannot be evicted therefrom. Nor was under the common he, liable for rent law, any for such use and occupation of more than his share. Kline See 68 Pa. Jacobs, where this Court said: “But neither at common nor law under statute could and assumpsit use occupation be maintained upon the mere it occupation, though be might shown permissive. Each tenant has an equal right the possession and without an whole, express contract account pay rent, was the only remedy un- der the statute of Anne.” (Emphasis supplied.)
Section 62 of p. sec. C.J., 421, declares: “Each tenant common is entitled to equally bene- use, and fit, possession common property, may exercise acts of ownership regard thereto. .
The majority opinion states defendant “cannot criminal escape liability by doffing wrap of his agency, garment own making, donning the cloak of cotenancy with its fictional legal attri- bute.”
Cotenancy is not a legal fiction. From the chambers of Sir William Blackstone, has moved unquestioned down stone corridors time in all its dignity, clarity and In authority. its ignoring precise and never-heretofore-questioned attributes wholeness and indivisibility, majority is judicial its doffing robes donning raiment of a legislator. The majority here is acting the General Assembly of the Common- wealth Pennsylvania, which it no has right do.
73 completely by judicial creating is which fiat, It is law authority. This scope beyond of its constitutional the place in post no has which ex factoism constitutes land laws. statutory unequivocal depart from the
Once we May PS (Act 46 Sec. 1019, P. L. mandate strictly, construed 558), are to be that criminal statutes only prosecution opened to loose door not have we persecutions. conduct If Bovaird’s to but vindictive improper that Criminal code does not cover but the Legislature of Commonwealth it is conduct, highly deficiency, supply In the not the courts. to complex life, business busi- transactions involved precision right what to know with men have the ness non-prohibited can for if acts is, the criminal law legitimate criminal become business construction acts, staggering right It been dealt blow. will have salutary of America to commercial interests operate to under men the shadow business should possible interpretation declare of a court which will acts criminal. Other their innocent states have not permitted that to shall see later. fall, shadow we opinion majority distinguish to seeks case
The Superior Pa. Court Mitchneck, Commonwealth questioned It in vain. cannot but seeks employe a certain sum Mitehneck owed his pay pay him failed he failed to also to which employe money. grocer to whom owed Mitch- temporarily money owing in effect, withheld neck thus, employes, Court held that this did not conversion. fraudulent constitute expressed Superior principle Court applies precisely to the at bar facts when it that case ‘money property “The words . . statute, said: . person, corporation other firm or entitled money owing not refer to does an- have’, receive *23 property but to or the to title and other, owner- ship of in is it form another; another of ex- pressing money property belonging or to another.” may money,
In the at case bar Bovaird owe but fraudulently not has it converted under the statute. Superior In 106 Com. Pa. Ct. Overheim, 424, Superior May A. the Court said: “The Act of 475, 18, property the 1917 makes fraudulent conversion a property but it misdemeanor, is essential that the' at belonged the time of sale or shall conversion to another(Italics supplied.) property
As cotenant the title of the of Carter and Company much in was as Bovaird as was In names of the cotenants. Commonwealth v. Cava Superior naugh, Superior 159 Pa. Ct. 116, 113, may Court said: “Of course one not be convicted ownership fraudulent if title and conversion of the property him.” is in Superior
In Commonwealth v. 158 Pa. Schuster, Ct. Superior gravamen Court said: “The withholding offense of fraudulent conversion is the another to with intent defraud that deprive or to him of the use other, and benefit of his apply and or convert same defend- against (Italics or ant’s own use benefit as the owner.” supplied)
Wharton’s Criminal 12th Vol. Law, Ed., sec. page joint declares 1479: at “Where there are personal tenants tenants common of a chattel, away disposes and one of them carries and it, larceny; taking, is no there no is, fact, he is al- ready possession; merely subject it of an action equity.” bill in account, cotenancy
It agreement, will be recalled given power plenary operate prop- Bovaird was erty cotenancy ample authority “as full owner power* the sole if lie were as unrestricted thereof.” George been agency has Bovaird
The matter only agent once to as referred He was overstressed. already for a agreement, and that indicated, as in the question entirely be- specific purpose unrelated to agent in his relation with an He fore us. was never principals They no all co-tenants. were brother agent least of all, the other. And, an one was Company, agent & which, of Carter Bovaird cotenancy. corporation Bovaird shown, *24 managing agent co- a cotenant. As not an but a was fraudulently property, could not Bovaird owner belonged to himself. what convert sure of itself not too That the ivas Commonwealth prosecution ground bringing in this is evidenced its against by indictments fact that it returned eleven four of them because the but had to abandon Bovaird charged fraudulent defendant conversion was Company partnership property course, and of Carter & partnership. on the no He was even indicted receiving salary! charge of embezzlement own And indictment had be withdrawn. Page 2(a),
2 In C. J. find: sec. we “Wheth- S., relationship parties er their as between the is one of agency depends they on their relations in as fact exist agreement parties, or acts of under the and the governed by stipulations question par- is not parties relationship and the cannot, ties; where agency, change by declaring in one of its nature fact agency, they, by calling nor can that it is not an their agency, make it relations one so when it is not so precise relationship in fact. Whatever between the may principal parties agent the relation of and be, does any in the not exist them absence of between essential relationship.” element attempt prosecution regard
I this whole pro- through a criminal courts to collect civil debt, always abhorred courts, cedure which has been grant the remotest sanc- and to should not which we in indict- tion. The transactions resulted openly. There all done ments this case were part on the of Bovaird no clandestine withdrawal very concealing no It clear that assets. funds, could it one of the co-tenants was understood make withdrawals because was understood accounting, a final and the debts there would be adjusted For instance, credits would be at that time. Carter 1936 John Carter Mrs. $5,000 withdrew In in the 1938 Mrs. Carter was hos- withdrew $2500. pital and a check was drawn the amount $4000 pay hospital bills. Mrs. Carter received $3,000 the nature of an advance 1939 and then additional totaling co-tenancy employed amounts The $9500. bookkeeper who made of all entries these withdrawals. examined books were the Internal Revenue Department purposes. at for income various times tax original John J. one of the Carter, co-tenants, George Christie inherited Bovaird, Avho Mrs. Bovaird’s co-tenancy, *25 they both share testified that were made defendant and aware withdrawals acquiesced in those Avithdrawals.
The
indictments
charging
tAvo
embezzlement Avere
under Section 824 of
18 PS
of
drawn
the Act
a
which states:
“Whoever, being
banker, broker,
merchant
and
for
attorney,
agent,
being intrusted,
safe
Aviththe
of
other
custody,
any
person, and,
intent
to defraud,
Avith
transfers,
sells, negotiates,
inor
manner converts or
any
appropriates
to or
pledges,
his own use or the use of
other
any
person,
of
any part
thereof,
guilty
embezzle-
property,
But the indictments fail to assert
ment. .”
indispen-
been
and
should
of intent
sable element
defraud
after
indictments,
These
alone.
on
ground
quashed
ac-
“money,
with
ivas entrusted
that Bovaird
noting
and Com-
Carter
belonging
and properties
counts
was entitled
M. Putnam
Beth
add “of which
pany,”
there-
or interest
interest
a
of
one-half share
to have
Putnam does
Mrs.
mentioning
this specifically
of,”
George
co-tenancy.
of
the nature
change
be
cannot
and still
an owner
Jr.,
still
Bovaird,
Bovaird,
George
from himself.
charged
embezzling
with
Court
Mrs. Putnam. This
cannot
an
agent
Jr.,
Pa.
Since defendant property property question, possessing he was belonging any person” “of or to other therefore guilty cannot be held of fraudulent conversion. Page In of Sec. 283, Burdick—Law Vol. Crime, 2, property we find the statement: “If owned 517, joint-tenants persons, or more or ten two such as no can lar ants one of commit common, owners ceny equally from all them the others because are possession.” Rep.
In State v. 22 Minn. 21 Am. Kent, 764, opinion Supreme of the Court holds: “Section ch. any agent, Gen. that ‘if or officer, enacts St., clerk, any incorporated company, or if servant, clerk, agent, any private person, any co-part- or or servant, fraudulently nership, . . or . embezzles, converts his employer own . . consent or use,. without his master, any money property or has come to another, which possession or is in his care, virtue such em- ployment, he shall be deemed committed lar- have ceny.’
“To sustain indictment under this section of the money property charged or statute, em- have been fraudulently money or must bezzled, be the converted, person of another than the indicted. The pew corpo- defendant was collector of for a rents church special express and acted as under a ration, such, compensation agreement, by which, his services, cent, per pew ‘five all the no rents, matter collected them.’ who agreement
“The effect towas vest in defend- ant an undivided interest the rents-col- one:twentieth and to that extent to’make him an lected, owner of the jointly corporation. In other same words, the were not the rents collected joint property corporation, corporation
79
property
They
therefore,
were,
the
and defendant.
the
that
It follows
than the defendant.
of another
properly
the section
under
indictable,
defendant is not
alleged
embezzlement
cited for
before
statute
the
any part
of the same,
and fraudulent conversion
2 Archbold
2
cited
Lewin, 256,
Holmes’s Case,
thereof.
McElroy People, 1058, Ill. 66 N.E. v. in State a statute under statute similar case quoting supra. Su the statute, After Kent, “By preme in order this statute, of Illinois said: Court fraudulent crime of embezzlement the to constitute the property If another. must be of conversion right plaintiff her from had to deduct commissions gross then to that extent the amount collected, company money belonged she and the her, is, to —that gross jointly. The that sum law where is, owned the property an interest a defendant has fraudulently alleged to his or been converted use can be no conviction the crime her own there (10 Eng. Ency. Am. & of embezzlement. Law, 985, 7.) and cases cited note 45 Ohio
“In the case of State v. St. Kusnick, Rep. 4 Am. St. the court Ht [15 567,] N.E. said: larceny, common to constitute true that at law, alleged property thing been stolen be the to have must person the offender. than It is true of another also nearly all States that the statutes which under- require subject embezzlement, take to define be shown to be of an- of the offense shall universally almost this has been construed other; wholly it must be of an- to mean then at to the ease other.” Court refers (The length of State v. supra) Kent, of a
The Court said further: “The evidence only criminal intent is the inference to be from the drawn act itself. She at no time denied or to con- attempted ceal the indebtedness.”
In this connection it be noted that the defend- will ant Bovaird at no time denied or in- concealed the *28 but it a matter of record all is that at debtedness, times the books of cotenancy disclosed the indebtedness of this defendant.
In Commonwealth v.
142 N.E.
Novick,
771,
Judicial Court Massachusetts
said at
Supreme
Page
771: “At common law it was
held that a
ordinarily
could
general partner
not be
convicted
or
larceny
embezzlement
appropriating
to his
use money
own
came into
possession by
which
virtue of his being
joint
such
partner
because it
owner,
‘the
of another.’
31
property
L.R.A. (N.S.)
822, note,
cases
v.
Gary Northwestern Mutual Aid
cited;
Associa
25
87
53 N.W.
tion,
Iowa,
State
1086;
v.
61
Butman,
N.H.
60 Am.
332.
511,
Rep.
See Commonwealth v.
It is earnest him re- criminally in declaring defendant done this Ias to the law according for an act which, sponsible committed. But even crime when not a see was it, by refusing done him new being injustice greater of the record. trial on the state at the trial The defendant desired show over cotenancy market $1,000,000, value This permit Trial refused evidence. *29 Judge the error. grave was of if is a matter common sense simple per-
It that and he can stealing is show charged son $100 he this would tend to possesses $100,000, negate that criminal intent the element of without which there can be no crime. made at the trial
Much was that Bovaird had with- from the drawn some but he $197,000 cotenancy, was criminally only with charged taking It would $9500. not be unreasonable to suppose that the on the jury, evi- morally found Bovaird of dence, guilty taking $197,- if had jury but the known that the value of the was over $1,000,000, figure of $197,000, is, as it would impressive have been reduced, to a their smaller calculations, comparative size. The element for in financial sympathy of the loser transactions I it is not that inevitable, say would a trial at law that should improper, sympathy at least be can be intelligently how it exerted, so exerted of jury when deprived knowledge all the facts?
It was at' the trial there shown were judgment liens against cotenancy the amount Here if the defendant had been $300,000. again, permitted to show the value of the whole property debt not influ- $1,000,000, $300,000 would enced the to the extent that it jury otherwise undoubted- ly did.
This on point squarely ruled the Superior Court in the case Commonwealth v. 14 Pa. Hazlett, Ct. 370. Superior defendant banker There, with embezzlement. At the trial en charged deavored to the assets of the bank at show the time it doors, closed its purpose repelling that he knew the bank charge was insolvent. The Trial Court the offer as refused irrelevant. The Superior Court reversed the conviction and remanded the case In a new trial. its the Superior Court opinion, said: embraced in the offer “The evidence which is subject assignment might the tenth shed light upon the whether the defendant question had suf ficient at the time he received assets deposit meet and his liabilities in the pay regular course for the as counsel commonwealth business, truly say, if clearly but we are opinion, that, believed by had a it would have legitimate jury, tendency repel was because Imowledge inference ” insolvent *30 that he was that he closed his bank belief The Court also: said “Whenever inten- motive, tion or belief of a party charged with crime is in is- it is for such competent party testify sue, directly that upon and also point, to the and circumstances facts an accompanying which tend act, repel reasonably be drawn might unfavorable inference from the act unexplained.” (Emphasis supplied.) if
In the case before us, motive or intention of George Bovaird strictly And issue. cer- relevant tainly show, there could defense, not have been intention to deprive other co- tenants of due since the them, assets ex- were cessively to meet all adequate their demands. Not only would the figure $1,000,000 all discharge obligations, but it would demonstrate that it included an amount in excess of whatever share Bovaird would be entitled to in the eventual distribution.
The failure to let the jury have this highly rele- vant evidence awas mortal blow to the defendant’s case because the jury could have it un- believed, doubtedly did, Bovaird’s withdrawals represented due taking moneys the other cotenants, whereas, on the of a basis $1,000,000 valuation, was not true. could still jury have believed, with the in- troduction of the $1,000,000 figure that Bovaird was but the defendant would guilty, have had his complete under day court, which, circumstances as I view has been denied now him. them, Speck Appellant, Cadillac-Olds, Inc., Goodman.