Commonwealth v. Tluchak

OPINION BY: RENO.
Appellants, husband and wife, separately appealed from convictions for larceny. The court below overruled their motions for new trials and arrest of judgment. The husband was sentenced to pay a fine of $ 50 and make restitution. Sentence was suspended in the wife's case.

The case arose out of a real estate transaction. By a written instrument appellants agreed to sell their farm to the prosecutor and his wife. The agreement did not include any personal property but it did cover: "All buildings, plumbing, heating, lighting fixtures, screens, storm sash, shades, blinds, awnings, shrubbery and plants." The purchasers took possession on June 14, 1946, and discovered that certain articles which had been on the premises at the time the agreement of sale was executed were missing. They were a commode which had never been attached and lay on the back porch in its shipping crate, an unattached washstand which had been stored in a bedroom, a hay carriage used in the barn, an electric stove cord extending from the switch box in the cellar to the kitchen, and 30 or 35 peach trees. These articles were charged in the indictment as subjects of the larceny.

The Commonwealth contended that the articles which were not covered by the written contract had been sold by an oral agreement between the parties. Appellants denied the oral agreement; denied the sale of the personal property; denied taking the trees; admitted they took the hay carriage; and as to all the articles which they took they contended that they were taken under a claim of right and therefore not feloniously. The jury found against them and, although they contend that the evidence is not sufficient in law to sustain a conviction, we shall assume, for the purpose of this decision, that the testimony established a sale of the personal property by appellants to the prosecutor and his wife. That is, that appellants sold but failed or refused to deliver the goods to the purchasers. Are sellers who refuse or fail to deliver goods sold to their purchaser guilty of larceny?

Appellants had possession of the goods, not mere custody of them. The evidence indicates that they were allowed to retain possession without trick or artifice and without fraudulent intent to convert them. Presumably title passed upon payment of the purchase price; nevertheless appellants had lawful possession thereafter. "One who is in lawful possession of the goods or money of another cannot commit larceny by feloniously converting them to his own use, for the reason that larceny, being a criminal trespass on the right of possession, . . . cannot be committed by one who, being invested with that right, is consequently incapable of trespassing on it":

An extensive research failed to uncover a Pennsylvania case in which the rule was applied to a factual situation similar to that at bar. But the principle has been recognized; e.g., in Com. v. Quinn, this Court approved instructions to a jury wherein it was said: "But a person may come into possession of somebody else's property in a legal way and if he, being so in possession of the property in a legal way converts it to his own use or withholds it from the owner so that the owner is deprived of the use thereof which he should have, then, though the defendant could not be guilty of larceny because he received it legally, he may be guilty of fraudulent conversion because after having received it he has deprived the owner of his use of it."

As suggested, appellants may have been guilty of fraudulent conversion, or of larceny by bailee if the theory is accepted that a vendor retaining possession of goods sold by him becomes constructively a bailee of the purchaser, and criminally culpable for failure to deliver them to his purchaser. Appellants were indicted for larceny only, and of that they clearly were not guilty.

Judgments and sentences reversed and appellants discharged without day.