Commonwealth v. Dissinger

Opinion by

Head, J.,

A concise statement of the facts as they have been established by the verdict of the.jury will readily disclose the legal questions involved in this appeal.

On July 31, 1911, the firm, of which the prosecutor is a member, executed and delivered to the corporation, of which the defendant is an officer, two promissory notes, one for $1,020, the other for $720. They matured in four months from that date. The defendant’s company had these two notes discounted by the First National Bank of Wrightsville, York county. When they were about to mature the defendant prepared and sent to the makers two notes in the same amounts, with a request that they be executed and promptly returned to him. This was done to enable him to take up and renew the notes which had been discounted. For that purpose, and for that purpose only, this defendant received those notes. After receiving them he went to the bank and sought to renew the obligations which had become due. In this effort he was, of course, carrying out, or attempting to carry out the purpose for which the notes had been made and put into his possession. The bank, however, declined the offer of renewal and insisted the original notes be paid. The defendant retained the two notes in his possession for several days, made no report to the makers of his inability to secure the renewals, and then went to the city of Lancaster where he mailed the notes to an association in New York City and received from that company checks for a considerable portion of the face value of the notes. Upon ascertaining these facts, the makers of the two notes last referred to started this prosecution, as a result of which the defendant has been convicted of the offense of larceny by bailee.

As to many of the facts to which we have referred, there was quite a conflict of evidence. In every such case the question was fairly submitted to the jury by the learned trial judge, and the verdict has answered each of such questions adversely to the contention of the defendant. It is now argued for the defendant, as the first legal proposition, that if he was guilty of any crime under the facts stated, the offense was larceny, and not larceny by bailee. The argument advanced is, that where one secures the possession of the personal property of another by trick, artifice or cunning, and then converts it, the offense is larceny. As a result of the application of that legal principle to the facts established, it is urged that when the defendant prepared and sent to the prosecutor the two notes in question on the pretense that he would use them to renew the outstanding ones, he secured possession of the owner’s property either by trick and artifice, or by a false répre-. sentation as to the use that would be made of them. Under these circumstances it is argued that although he might be guilty of larceny or of false pretense, he would not be guilty of the offense charged, namely, larceny by bailee. Such argument fails to give due significance to the important facts established by the verdict. There is no evidence that when the defendant prepared the notes and sent them to the prosecutor for execution, he intended to do aught else with them than to use them, as the makers intended they should be used, in renewing the maturing obligations. Whatever may have been secretly in the mind of the defendant, every act performed by him thus far in the transaction was a perfectly legitimate one and referable to a motive wholly innocent. The jury were warranted then in reaching the conclusion that the defendant did not obtain possession of the two notes either by trick, artifice or false representation. Such a conclusion became almost inevitable in the light of the further fact, that upon the receipt of the notes, the defendant took them to the bank and made an apparently honest effort to accomplish the object for which they had been placed in his hands. It does not appear that prior to that time he had any knowledge they would be declined by the bank, and therefore his act in offering them was naturally and properly considered by the jury as satisfactory evidence of his good faith down to that time.

But it is further urged that if the offense charged in the indictment was committed by the defendant, the conversion of the property of the prosecutor occurred in York county and therefore the offense was not triable by the quarter sessions of Lancaster county. In support of this it is argued that when the defendant failed in his effort to use the notes properly, the fact that he retained the possession of them and did not return them promptly to the owners amounted to a conversion. Even if we concede, for the sake of the argument, that the mere retention, for a few days, of the possession which had been lawfully acquired might be regarded as evidence of an intent to convert, such retained possession could much more naturally be ascribed to any one of many innocent reasons. It is a safer proposition to hold the law cannot deal with a purely mental attitude. It must await the performance of some overt act indicative of the state of mind which prompted it. The inquiry then in the present case would only be, when and where did the defendant first perform an act that was not consistent with an honest intent to return the notes to the makers but on the contrary was clearly expressive of a design to break away from his obligation as a bailee and' convert the property of another to his own use? If from the hotel in Lancaster city he wrote the letter and there mailed it, which carried these notes to the party in New York who discounted them, he then and there performed an act entirely inconsistent with an intent to keep within the law and his duty and stepped' across the line which marks the boundaries of guilt and innocence in such a transaction. The defendant, on this point, offered evidence tending to prove that the notes were sent to New York, not from the city of Lancaster, as the commonwealth claimed, but from York county. The learned trial judge could not do otherwise than submit this question to tbe jury, and this he did under instructions, the fairness of which could not be and is not challenged. With that fact found, there is no longer room for argument that the court in Lancaster county was without jurisdiction of the offense.

Every necessary ingredient of the offense charged has been thus proven by evidence which the jury has determined to be true, and we are unable to discover, either in the conduct of the trial or the legal conclusions reached by the learned trial judge, any reversible error. All of the specifications of error are therefore overruled.

The judgment is affirmed, and it is ordered that the defendant appellant appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with the sentence, or any part of it that had not been performed at the time this appeal became a supersedeas.