Commonwealth v. Bovaird
| Decision Date | 13 February 1953 |
| Citation | 373 Pa. 47,95 A.2d 173 |
| Parties | COMMONWEALTH v. BOVAIRD. |
| Court | Pennsylvania Supreme Court |
Rehearing Denied March 24, 1953.
An accused was convicted in the Court of Quarter Sessions of McKean County, at Nos. 17, 18, 19, 29, 31, and 33, Oct Sessions, 1950, Hubbard, P. J., of fraudulent conversion, and he appealed to the Superior Court. The Superior Court Dithrich, J., at Nos. 141 to 146 inclusive, Oct. Term, 1951 84 A.2d 355, 169 Pa.Super. 596, affirmed the judgment and defendant appealed. The Supreme Court, Chidsey, J., Nos 119-124, inclusive, January Term, 1952, held that defendant was properly convicted notwithstanding his status as a cotenant.
Judgment affirmed.
Charles J. Margiotti, Vincent M. Casey and Margiotti & Casey, Pittsburgh, J. J. McDowell and McDowell & McDowell, Bradford, for appellant.
William P. McVay, Deputy Dist. Atty., McKean County, Bradford, for appellee.
Before DREW, C. J., and STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.
Defendant was convicted and sentenced on four indictments charging fraudulent conversion under § 834 of the Penal Code of 1939, 18 P.S. § 4834, and on two indictments charging embezzlement under § 824 of the Code, 18 P.S. § 4824. This appeal is from the judgment of the Superior Court which sustained the convictions.
At the trial of the case, upon the conclusion of the taking of testimony, defendant moved for a directed verdict for the reason that the Commonwealth had not made out a prima facie case; that the indictments for fraudulent conversion were ‘ repugnant’ to those for embezzlement; that it was legally impossible for the offense under the proof to be both the crimes charged; and that the Commonwealth had not charged or proved a crime as set forth in the sections of the Penal Code under which the indictments were drawn. The motion was overruled, and after the jury had found the defendant guilty on all of the indictments, the same contentions were raised in motions in arrest of judgment and for a new trial, the latter raising an additional question here pressed and hereinafter separately considered.
The Commonwealth adduced evidence that on July 27, 1934 a written agreement headed with the notation ‘ Cotenancy Agreement’ was entered into by defendant and his then wife, Margaret C. Bovaird, and John J. Carter and his wife, Beth M. Carter (now Beth M. Putnam, the prosecutrix). The agreement was drawn up by John J. Bovaird, an attorney and brother of defendant. It recited in part that the parties were to be associated together as tenants in common, said cotenancy to be known as Carter & Company, for the purpose of acquiring and operating for petroleum and natural gas, certain properties or tracts of land in McKean County, Pennsylvania; that the proportionate share of each of said ‘ cotenants' was a one-fourth interest.
The agreement provided further that the defendant, Bovaird, would ‘ * * * in all respects * * * manage, control and operate said property with as full and ample authority and unrestricted power as if he were the sole owner thereof * * * and for this service’ he was to ‘ be paid the sum of two hundred dollars monthly.’ [later increased to $250]. Carter was ‘ * * * entitled, at any time he * * * [might] so desire, to work for Carter & Company’ and he did so work later on ‘ at the stipulated sum of two hundred dollars per month [likewise increased to $250], under the direction of the Agent, the aforementioned George Bovaird, Jr, * * *’ . The agreement also provided: (Emphasis supplied).
The only contributions in money to the enterprise were made by Beth M. Putnam (formerly Mrs. Carter) who furnished an initial instalment of $30,000 which was used as down money for the acquisition of the properties and two subsequent instalments, one of $27,500 in 1940, used on account of acquisition of an additional property, and another of $10,000 later supplied by her at a time when the company could not pay a very pressing obligation. Thus Mrs. Putnam's advances totalled $67,500.
Margaret C. Bovaird died in the fall of 1934 and upon her death her interest in the cotenancy vested in her son, George Christie Bovaird, with his father as trustee. Marital differences having arisen between the Carters, in 1943, Mrs. Carter obtained a divorce and took from her husband an assignment of his one-fourth interest in the enterprise.
Of the monies so advanced by Mrs. Putnam she received back by several payments a total of $9,500. While obligations of the company remained unpaid (at the time of the trial they amounted to $300,000) and reimbursement of Mrs. Putnam's ‘ initial installment and other advances' had not been made, the defendant, George Bovaird, Jr., nevertheless made withdrawals out of operating profits in the amount of $235,000. In the company's books the capital account of the defendant for the period of the cotenancy ended December 31, 1949 showed an overdraft of $196,704.28. The account of George Bovaird, Jr., trustee, showed a credit balance of $46,345.32; and the account of Beth M. Putnam showed a balance of $127,690.67 in her favor which represented her share of operating profits and the balance of advances due her. The defendant actually drew $235,000 in cash over and above his salary which he placed in his personal bank account for his own use. The overdraft of $196,704.28 reflects credit for a one-quarter share of the profits.
Mrs. Putnam who took no part in the management of the enterprise and who after her first marriage in the fall of 1934 did not live at Bradford where the business was carried on, testified that from time to time she made requests of the defendant for distribution of funds but other than the $9,500 above mentioned, she received nothing. On several occasions defendant told her ‘ Everything is going fine, we are making lots of money.’ ‘ * * * but there is no money for distribution’ .
The defendant testified that withdrawals by him were authorized by Mrs. Putnam. His son, George Christie Bovaird, testified on his father's behalf that he knew of his father's withdrawals and acquiesced in them. Carter, Mrs. Putnam's divorced husband, also testifying on defendant's behalf, said it was the understanding that withdrawals were to be made by those who asked for them. Mrs. Putnam testified that she did not know that defendant was making the withdrawals in question and had not authorized them. The jury apparently believed Mrs. Putnam, and a reading of the entire record persuades us they were justified in so doing and in finding that defendant was not authorized to make the withdrawals.
The indictments were founded on specific withdrawals made within the statutory period for prosecution. Each of the four indictments for fraudulent conversion related to a separate transaction and covered a different date and amount, but all of them in substance are the same and charge that defendant being ‘ * * * an agent of Carter and Company and as such agent being entrusted for the safe custody of the monies, accounts and properties of said Carter and Company, did * * * fraudulently, unlawfully and feloniously withhold, convert and appropriate to his own use,’ a certain sum of money ‘ * * * being the funds of Carter and Company, by drawing a check of Carter and Company * * * on the account of said company in the Citizens National Bank of Bradford payable to * * * [himself], and thereafter * * * using the proceeds of said check for his own use and benefit, * * *’ .
Section 834 of the Code, 18 P.S. § 4834, provides in part that: ‘ Whoever, having received or having possession, in any capacity or by any means or manner, of any money or property, of any kind whatsoever, of or belonging to any other person, or which any other person is entitled to receive and have, fraudulently withholds, converts, or applies the same, or any part thereof, or the proceeds or any part of the proceeds, derived from the sale or other disposition thereof, to and for his own use and benefit, or to and for the use and benefit of any other person, is guilty of a felony, * * *.’ (Emphasis supplied.) The section is a reenactment of the Act of May 18, 1917, P.L. 241.
The two indictments charging embezzlement also relate respectively to separate transactions occurring on different dates and involving different amounts but in substance are the same and charge that defendant ‘ * * * being * * * an agent of Carter and Company and as such agent being entrusted for safe custody of the money, accounts and properties belonging to Carter and Company, of which Beth M Putnam was entitled to have a one-half share of interest * * *, did unlawfully, fraudulently and feloniously take, convert and...
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