Commonwealth v. Swayne , 1896 Pa. Super. LEXIS 195 ( 1896 )

Opinion by

Beaver, J.,

The defendant, who is the appellant here, was convicted in the court below of the crime of larceny as bailee, the indictment being based upon the 108th section of the act of March 31, 1860. The facts sufficiently appear in the opinion of the court below and, so far as necessary to an understanding of the case, will be alluded to in our discussion of the eleven assignments of error presented for our consideration.

The first assignment is as follows: First. The court erred in charging the jury as follows: “ (the whole charge from beginning to end being set forth totidem verbis.) Rule 15 of this court provides that each error relied on must be assigned particularly and by itself. What is the error relied upon in this assignment? Is it that the charge of the court taken as a whole was inadequate, or that it was unfair to the defendant, or that it failed to state the evidence specifically and fairly, or that the conclusions of law therein set forth were erroneous ? We cannot tell. The particular error complained of should be specifically set forth, so that the attention of the court may be directed thereto. This assignment, therefore, lacking as it does the essential element of particularity, is not considered.

The second assignment charges that the court erred in charging the jury as follows: “ The guilt or innocence of this defendant depends upon the truth of the testimony of the commonwealth.” The correctness of this abstract proposition can hardly be doubted, but the assignment is unfair to the court below and misleading to this court, inasmuch as it wrests from its connection only part of a sentence from a paragraph which taken together is entirely unobjectionable, which is as follows: “ The testimony in this case is not very lengthy and it is not necessary for me to refer you to it. You all recollect it, and the guilt or innocence of this defendant depends upon the truth of the testimony of the commonwealth—whether you believe that or not or whether the evidence of the defendant as explained satisfies you that his version of the story is the correct one.”

The third, fourth, fifth and sixth assignments of error, all relating to parts of the charge of the court, are overruled, inasmuch as they fairly represent the main facts of the case which were necessarily submitted to the jury for its finding in the event that any of the facts of the case were to be so submitted.

The tenth assignment, which covers the refusal of the court to affirm the defendant’s third point, is also overruled. The point itself does not contain a legal proposition which could be affirmed, even if the facts alleged by the defendant were true.

The seventh and eighth assignments of error are sustained. The seventh relates to the version of the testimony of Mrs. Judge, as given by the learned judge in the court below in his charge to the jury, as follows: “ But Mrs. Judge testified that they asked her to sign this receipt and that she would not do it, because it might have been some evidence of a sale on her part.” Although Mrs. Judge did testify that she was asked by the defendant to sign the receipt, she does not say that she “ would not do it,” nor does she assign any reason therefor, as stated by the court.

Whether or not the receipt given by Swayne, the defendant, to Kelley, the intended purchaser of the property of Mrs. Judge, would have constituted a valid agreement for the sale of the property, conceding that Swayne was a drily constituted agent for its sale, and would have taken the case, if it had been a civil one, out of the operation of the statute of frauds, we do not determine ,nor is it necessary so to do, but we think the court erred in laying down the rule in regard to contracts governing the sale of real estate as applicable to this case, as assigned for error in the eighth asssignment. If, as was alleged by the defendant and in a measure corroborated by Kelley, a verbal agreement was made for the sale of the property and the check was given by Kelley to Swayne on account Of the purchase money, and the check so given was afterwards held by Swayne under a bona fide claim of right, the jury should have been told that such a claim negatived the felonious intent necessary to constitute the crime with which he was charged.

The ninth and eleventh assignments relate practically to the same question, which is the fundamental one in the case, and are considered together, namely, was the defendant, Swayne, a bailee such as is contemplated by the 108th section of the act of March 81, 1860 (P. L. 382), which is as follows : “ If any person, being a bailee of any property, shall fraudulently take or convert the same to his own use or to the use of any other person, except the owner thereof, although he shall not break bulk or otherwise determine the bailment, he shall be guilty of larceny and punished as is provided in cases of larceny of like property.” Soon after its adoption, this section of the criminal code received an authoritative interpretation in the case of Commonwealth v. Chathams, 50 Pa. 181 (1865). In the court below, the jury found a special verdict, reciting the facts under which the defendant came into possession of and used the property of which he was charged in the indictment with being guilty of larceny as bailee. The property consisted of goods and chattels used in farming loaned to the defendant for use without pay. The court below, restricting the operation of the statute to the object which the commissioners, appointed to frame the penal code, had in view in proposing it as shown in their report, decided that the defendant was not such a bailee as was contemplated therein and entered judgment in his favor. The Supreme Court upon appeal, in a lengthy opinion rendered by Mr. Justice Read, reversed the court below and directed the record to be remitted for sentence according to law. If Swayne, the defendant, came into possession of the check referred to under the circumstances detailed by Kelley and Mrs. Judge, he was undoubtedly a bailee under the species of bailment denominated by Sir William Jones in his analysis of bailments as depositum, i. e., the custodian of a naked deposit without reward. He could, therefore, be convicted under the provisions of the 108th section above referred to. The check referred to is a species of property which is the subject of bailment and, if the allegation of the commonwealth was sustained that it was received by the defendant impressed with the trust that, in ease the contemplated sale were not finally consummated on the following day, it was to be returned, there might be a conviction under the indictment in this case. The ninth and eleventh assignments of error are, therefore, overruled.

Being compelled to sustain the seventh and eighth assignments of error, we think the ease should be sent back for a retrial.

Judgment reversed and a new venire awarded.