176 Pa. Super. 523 | Pa. Super. Ct. | 1954
Opinion by
The appellees were indicted for mutilation of corporate records, embezzlement by officers of a corporation, fraudulent conversion of money of a corporation and conspiracy to cheat and defraud a corporation of certain funds. It was charged in the indictments that the funds which were misapplied belonged to the Mc-Kees Rocks Firemen’s Relief Association, also known as the McKees Rocks Firemen’s Protective Association, a nonprofit corporation, the funds being those annually received from the State Treasurer under the provisions of the Act of 1929, P. L. 709, and its amendments (which provides for payment of the tax received from
It is argued that the lower court erred in granting a new trial for a reason not assigned in the motion for the same. At the oral argument in the court below the appellees for the first time raised the question that the court erred in permitting the above mentioned amendments of the indictments. It is argued that the
It is next argued by the Commonwealth that the lower court did not err in permitting the amendment of the indictments. With this we are in accord. Where, however, an amendment causes genuine surprise the case should be continued to afford an opportunity to adequately prepare a new defense. Comth. v. Streets, 113 Pa. Superior Ct. 65, 172 A. 31. The defense in this case was largely based upon the fact that appel-lees were charged with having committed offenses against a corporation whereas they knew the organization was an unincorporated association. The lower court in its opinion stated: “After the allowance of amendments to the indictments as aforesaid, and the refusal of the motion to withdraw a juror on the plea
The Commonwealth also argues that a new trial should not be granted where the appellees made a wrong guess as to the sufficiency of the evidence. The granting or refusing of a new trial is largely within the discretion of the trial judge. Howser v. Comth., 51 Pa. 332; McManus v. Comth., 91 Pa. 57; Gray v. Comth., 101 Pa. 380; Comth. v. Crow., 303 Pa. 91, 154 A. 283; Comth. v. Powell, 303 Pa. 104, 154 A. 287; Comth. v. Jones, 303 Pa. 551, 154 A. 480; Comth. v. Popp, 87 Pa. Superior Ct. 193; Comth. v. Samson, 130 Pa. Superior Ct. 65, 196 A. 564; Comth. v. Bowles, 163 Pa. Superior Ct. 123, 60 A. 2d 362.
The lower court stated that it was its opinion that “fairness and justice requires that these defendants be given an opportunity to take the witness stand and tell the circumstances under which they received their respective shares of this annual revolving fund and what they did with it.” In a charge of fraudulent conversion the test is “not whether defendant had the right to withhold this money but whether in good faith he believed he had such right.” Comth. v. Wiener, 340 Pa. 369, 17 A. 2d 357. The lower court undoubtedly felt that in directing appellees to go to the jury and in not granting a continuance on the ground of surprise, it had upset the defense and that in fairness they should be given another opportunity to take the stand for the above mentioned reasons. In our judgment this did not constitute an abuse of discretion.
The appellees also argued that the Commonwealth’s appeal should be quashed for the additional reason that a question of fact was involved in the granting of
The order of the lower court is affirmed.