Opinion by
Dеfendant, a public accountant, was convicted on four separate indictments of fraudulent conversion of moneys given him for payment of income taxes to the Federal Government. This appeal questions the lower court’s refusal to withdraw a juror and alleged errors in the charge of the court.
For many years, Klein’s Department Store in Point Marion, Fayette County, employed the accounting agency of William A. Wood to audit the store’s books and handle all tax matters. In 1944, defendant was the accountant assigned by the agency to make Klein’s monthly audits and prepare tаx returns. In February, 1949, the Internal Revenue Department informed Klein’s Department Store of an additional tax for 1944 of $2,387.72 plus interest. Klein notified the accounting agency of this additional assessment and arranged for monthly payments. The payments were made in the following manner: on April 11, 1949, he gave defendant a check drawn to defendant’s order for $449.77; *254 on May 9, 1949, a check to defendant’s order for $400; on Junе 6,1949, a check for $548; and on July 12, 1949. a check in the amount of $550. These four monthly checks totaled $1,947.77. In the middlе of August, 1949, Klein was notified by the Internal Bevenue Department that payments on his additional tax assessment were in arrears. He immediately notified Mr. Wood who ascertained from the taxing authorities that payments had been made on May 3, 1949, of $250, and on June 17, 1949 of $237.72. In other words, defendant had failed to remit $1,460.05 of Klеin’s money to the Government. Wood discussed the matter with defendant, who was no longer in his employ, and shоwed him the figures. Defendant’s reply was: “I’ll take care of it.” On August 30, 1949, a payment was made of $1,-360.05 1 which amount was credited to the Klein account on September 14, 1949. The balance of the tax assessment wаs paid by Klein on November 1, 1949.
In the course of his argument to the jury the district attorney in referring to defendant’s payment of the balance of the funds entrusted to him said: “He goes to another client and gets this money to pay this debt.” Defendant objected to the remark and requested a juror be withdrawn. Denial of defendant’s motion was not an abuse of discretion.
Behrens v. Mountz,
*255
The fact that defendant subsequently paid the money to the taxing authorities is immaterial. The gist of the offense of fraudulent conversion is the withholding of another’s property with the intent to defraud or deprive that other person of the use and benefit of his propеrty and to convey or apply the same to defendant’s own use or benefit as against the ownеr’s. The Penal Code of June 24, 1939, P. L. 872, §834, 18 P.S. §4834.
Com. v. Kniel,
Where defendant, as here, is lawfully in possession of property, the general rule is that before an indictment for fraudulent conversion can be sustained there must be evidence of a demаnd and refusal to redeliver. Co
m. v. Winegrad,
*256
Defendant argues the trial judge erred in submitting the case to the jury on the theory of a conversion of the amounts retained by defendant, whereas the indictments charged conversion of the total amounts paid defendant by Klein. It is submitted that such a variance entitles him to a new trial. We do not аgree with the contention. “Proof of the felonious taking of money in an amount either greater оr less than averred in the indictment will sustain a conviction”:
Com. v.
Haimbach,
Judgment is affirmed; and it is ordered that defendant, if released on bail, appear in the court below at such time as he may be there called and that he be committed by that court until he shall have complied with his sentence or any part of it whiсh had not been served at the time his appeal was made a supersedeas.
Notes
Defendant did not testify and his counsel in the brief filed here says the discrepancy of $100 was caused by defendant’s inadvertently miscalculated balance.