Hutchison v. Commonwealth

• Decision Date: 02 January 1877
• Parties: Hutchison and Batchelder <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

82 Pa. 472

Hutchison and Batchelder versus The Commonwealth.

Supreme Court of Pennsylvania.

October 24, 1876.

January 2, 1877.

October 24th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ. WILLIAMS, J., absent

Error to the Court of Quarter Sessions of Armstrong county: Of October and November Term 1876, Nos. 62 and 63.

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J. Smullin and J. Gilpin, for plaintiff in error; whose contention was in the main that made in support of the motion to quash the indictment. It was further argued, that after the defendants had demurred to the evidence and the Commonwealth joined, the court could not discharge the jury. If for nothing else, they should have been allowed to find the value of the property. Upon the point whether the defendants were bailees, it was contended that Bishop delivered to them no property in possession; what he gave to them was a mere chose in action, an incorporeal right. He was not to receive back the identical oil he gave them, for he had put it in the Pipe Line, where it had entirely lost its identity, and was mixed with thousands of barrels in the pipes and tanks. Bailment is a delivery of goods; there can be no delivery of things which are incorporeal and lie in grant only. The contract was not a bailment, as is manifest to any one acquainted with the the method of dealing in storing and transporting oil. A pipe line is similar to a bank, except that it receives oil instead of money, and counts by barrels instead of dollars; an accepted order is the same as a certified check. Deliver and store are the words we apply to oil. Pay and deposit are those we apply to money. Suppose A. was to give B. a check, certified by a bank, for $1083, and B. give in return a receipt acknowledging the receipt by him of $1083 on deposit, which he was to pay to A. upon demand. And that B. thereafter deposited the check and was credited with the proceeds of it in his general bank account, and from day to day checked against his bank balance until it was all drawn out, and that when A. afterwards demanded of B. the money mentioned in the receipt, the latter would be unwilling, or unable to pay. Would B. be guilty of larceny as bailee? Mutatis mutandis the present case is exactly the same. Unless Bishop actually delivered to defendants certain separated specific oil upon a contract that they were to return to him precisely the identical oil which they originally received from him, they should not have been convicted under the fifth count: Commonwealth v. Chathams, 14 Wright 188; Commonwealth v. Frantz, 8 Phila. R. 612.

E. S. Golden and the District Attorney, Jefferson Reynolds, for the Commonwealth.—The 1st, 2d, 3d and 4th counts charge embezzlement varying only in the details of the offence and the character of the defendants, and are sufficient to sustain the conviction. The 5th count charges the offence of larceny as bailee under sect. 108 of the Act of March 31st 1860. The offences are clearly and separately charged in each count and growing out of the same transaction, and the misdemeanor being part of the felony and triable in the same court they may be legally charged in the same count: Hunter v. Commonwealth, 29 P. F. Smith 503. A misdemeanor and felony may be joined in same indictment: Hunter v. Commonwealth, supra; and where the defendant demurs a conviction and sentence will be sustained if there be one good count, and the sentence legally appropriate, as was the case here. The defendants having demurred to the evidence there was no further necessity for a jury, as the facts were admitted by the demurrer, and it was the duty of the court to give judgment as well upon the guilt of defendants as the value of the property converted: Commonwealth v. Parr, 5 W. & S. 345. The important question is, were defendants bailees? The word bailee is to be understood in its ordinary acceptation and means simply a custodian of property to be kept for and returned to another. Defendants agreed that the property was "to be held for storage," on certain terms, and they cannot say that because of their act in confusing it with other property they are not amenable to the criminal law. In contemplation of law and by the express language of their contract they were bound to restore the identical property on demand, and in no aspect of the contract had they a right to convert it to their own use. It is of the highest importance that the scope of the Act of Assembly should not be limited so as to exclude from its provisions the producers of oil, the necessities of whose business compel them to intrust pipe lines and parties like defendants with the care of their property, and if the old remedies be not adequate the court will in this case, as it did in Brown et al. v. Vandergrift et al., adapt the remedy to the existing facts.

Mr. Justice PAXSON delivered the opinion of the court, January 2d 1877.

There was a certiorari as well as writ of error in this case. The former was specially allowed by our brother WILLIAMS at chambers. There was no allowance of the writ of error, although issued simultaneously with the certiorari. This was evidently an oversight. The Commonwealth moved to quash both writs, and assigned as reasons therefor, 1. Informality in the allowance of the writs; and 2. That neither certiorari nor writ of error would lie in the case. The objections are purely formal, and inasmuch as the record presents a proper case for review, we have no hesitation in allowing the writ of error nunc pro tunc. The Act of 19th May 1874 (Pamph. L. 219), makes ample provision for writs of error and certiorari in criminal proceedings. In all cases of felonious homicide and in all such other criminal cases as are triable exclusively in the Oyer and Terminer, said writs are of right. In all other criminal cases they may be issued whenever allowed by this court or a judge thereof.

Upon the trial in the court below a motion was made on behalf of the defendants to quash the bill of indictment. The motion was refused, and this ruling of the court forms the subject of the first seven specifications of error. We are of opinion that the first, third and fourth counts are fatally defective and ought to have been quashed. The first count charges the defendants with embezzlement as "trustees and agents." Here is a blending of two offences in one count, which is not allowed in criminal pleading. Embezzlement by trustees is one offence; embezzlement by agents is another, and indictable under a different section of the code. Offences which are a part of the same transaction may be joined in the same indictment, when it is triable in the Quarter Sessions, even though one of said offences be a felony: Hunter v. Commonwealth, 29 P. F. Smith 503. This, however, does not justify the joining of separate offences in one count. The third count charges the defendants with embezzlement as bailees. There is no such offence at common law nor under the code. The fourth count charges the defendants with embezzlement as "trustees, agents and bailees." This is defective for the reason stated in regard to the first count. The second count is perhaps sufficient in point of law. It charges embezzlement as "agents." It is, however, of no practical importance, as there was no evidence to support it. The defendants were not the "agents" of the prosecutor. This obviates the necessity of any discussion as to whether the defendants were professional agents. This conviction, if sustained at all, must rest solely upon the fifth and last count of the indictment. This count charges the defendants with larceny as bailees. It is true the blunder of joining the words "bailees and agents" is again repeated, but we think with a different result. There is not a blending of two or more separate offences in the one count, as is the case in the first and fourth counts. There is no section of the code which defines and punishes such an offence as larceny by "agents." Hence, the word "agents" does not introduce another offence into this count, and may be rejected as surplusage. This brings us to the important question in the case, viz.: was the evidence for the Commonwealth sufficient to sustain a conviction of larceny as bailees? The defendants demurred to the evidence, and the district attorney having joined therein, the court discharged the jury and gave judgment for the Commonwealth upon the demurrer. The discharge of the jury is one of the errors assigned. In this we think the court below was right. It is true a jury are not only judges of the facts in a criminal case, but they are also judges of the law under the advice and instruction of the court. It was in the power of the defendants to require the jury to pass upon the whole case. But they waived this right by their demurrer to the evidence. By this act they threw the decision of both the law and the facts upon the court, and the discharge of the jury was entirely proper. They had no further functions to perform: Commonwealth v. Parr, 5 W. & S. 345. In the consideration of the question whether the court below was right in adjudging the defendants guilty under the evidence, the first thought that naturally suggests itself is, was there a bailment of the oil? This involves a brief statement of the facts as proved upon the trial and admitted by the demurrer.

On the 13th of July 1874, R. L. Bishop, the prosecutor, was the owner of 1083 barrels of crude petroleum. This oil was in the pipes or tanks of the Union Pipe Line, and Mr. Bishop held as the evidence of his title two accepted orders on said company. On the day above named Mr. Bishop delivered these orders to the firm of Hutchison & Batchelder, the defendants, and took from them the following receipt: —

                                    "Parker's Landing, Pa., July 13th 1874
                

"Received of Mr. R. L. Bishop ten hundred and eighty-three 66/100 barrels of United oil,...