Krause v. Commonwealth

• Decision Date: 15 March 1880
• Citation: 93 Pa. 418
• Parties: Krause <I>versus</I> Commonwealth.
• Court: Pennsylvania Supreme Court

Page 418

93 Pa. 418

Krause versus Commonwealth.

Supreme Court of Pennsylvania.

March 4, 1880.

March 15, 1880.

March 4th 1880.

Before SHARSWOOD, C. J., GORDON, PAXSON, TRUNKEY and STERRETT, JJ. MERCUR and GREEN, JJ., absent

Error to the Court of Quarter Sessions of Lehigh county: Of January Term 1880, No. 233.

Butz & Schwartz and William H. Sowden, for plaintiff in error.—Where there is a bailment a re-delivery of the thing bailed is contemplated by the parties. No re-delivery was here intended. The transfer was a conditional sale not a bailment: Hilliard on Sales 1; Mallory v. Willis, 4 Comst. 85; Foster v. Pettibone, 7 N. Y. 435; Commonwealth v. Chathams, 14 Wright 188; Haak v. Linderman et al., 14 P. F. Smith 499; Chamberlain v. Smith, 8 Wright 431; Commonwealth v. Cart, 2 Pitts. 495.

Milton C. Henninger, District-Attorney, for the Commonwealth. —By an examination of the specifications of error it appears there are none assigning as error the rejection or admission of any evidence by the court below. The question raised is as to the sufficiency of the evidence upon which a conviction was had. We are aware that, by virtue of the Act of 1874, exceptions can now be taken to the admission or rejection of evidence by the court below in criminal cases such as the one at bar. But the fact still remains that this court can not take cognisance of such errors, if any there be, unless the same are properly brought to its notice by bills of exception.

Mr. Justice TRUNKEY delivered the opinion of the court, March 15th 1880.

The indictment contained two counts: 1. Larceny; 2. Larceny by bailee; the alleged stolen property was the same in both. To the first count Krause pleaded a former acquittal, on which plea verdict and judgment were rendered in his favor. He was then tried and convicted on the second.

In the charge of the court, the Commonwealth's case, as proved, was fairly stated thus: On December 13th 1878, the prosecutor sold and the defendant agreed to purchase the two horses; that the price agreed upon was $150, to be paid on delivery, the prosecutor to take the horses to the defendant's stable, at Allentown, the next day and receive the money; that he took them to said stable and left them; that other interviews and negotiations followed continuing up to the Thursday of the next week, when the horses disappeared from the stable, and were sold or converted by the defendant to his own use. That when the horses were taken to the stable the defendant had only $25, and it was then agreed that the horses should continue to be the property of Deemer, who would not sell them except for cash; that he would wait till the following Tuesday evening, when, if the defendant should not have the money to buy the horses, they were to be taken to Deemer, at Schœnersville, and with this understanding Deemer accepted the $25; that on Tuesday evening the defendant took one of the horses to Schœnersville, and the next evening went again, taking the other horse, on each occasion taking the horse back with him; that on Thursday Deemer went to Allentown for his horses, and offered to return the $25 to the defendant, but he refused to give them; and that the original contract was never changed, the horses were sold only for cash, and the extension of time was given to enable the defendant to buy and pay for them. Such were the alleged facts which now must be taken as true.

Having acquitted the defendant of larceny of the horses, the Commonwealth put him to another trial and convicted him of larceny, in stealing the same horses, under section 108 of the Crimes Act of 1860. Villanous as his conduct was, this conviction ought not to stand, unless he was a bailee within the intendment of the act. The word bailee is a legal term, to be understood in its generally accepted sense among jurists, and if it be doubtful whether a case be included it shall be excluded, in the construction of a criminal statute. Blackstone defines bailment as "a delivery of goods in trust upon a contract, express or implied, that the trust shall be faithfully executed on the part of the bailee;" Story, "a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust;" Jones, "a delivery of goods in trust on a contract, express or implied, that the trust shall be duly executed, and the goods re-delivered as soon as the time or use for which they were bailed shall have elapsed or be performed;" and Kent, "a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be duly executed, and...