Commonwealth v. Lettieri , 63 Pa. Super. 532 ( 1916 )

Opinion by

Williams, J.,

The appellant was convicted of embezzlement as an agent under Sec. 114 of the Act of March 31,1860, P. L. 382, which provides as follows: “If any person, being a banker, broker, attorney, merchant or agent, and being entrusted for safe custody, with the property o.f any person, shall with intent to defraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate to or for his own use, or for the use of any other person, such property, or any part thereof, he shall be guilty of a misdemeanor.” The indictment contains ten counts, five charging embezzlement as a clerk, and five charging embezzlement as “agent.” The Commonwealth elected to try under the latter.

• It appears from the evidence that the appellant had been an agent for the sale of steamship tickets for Hart-field, Solari & Co., steamship agents of New York, for five years previous to his arrest. The terms of the agency were as follows: “We will sell these tickets to applicants according to the conditions imposed by you, give you prompt advice of the sale of each ticket and remit simultaneously the amount due you by check on New York City.”

On June 7, 1913, in pursuance of his agency, he sold three tickets and received in payment a promissory note for $124.95. He discounted the note and deposited the proceeds to his credit. The note was subsequently renewed and finally paid by the maker. The defendant admitted that he received the money and retained it. He sought to justify the retention on the ground that his principal was indebted to him for services rendered, but he made no claim therefor until after he was indicted.

The questions of whether the defendant was an agent; whether, as such agent, he had embezzled the price of the tickets; and whether he had retained the price in good faith, were properly submitted by the court. The verdict of guilty, therefore, is conclusive against him.

The assignments of error raise only one real question of law, viz: Did the evidence establish that Lettieri was an “agent” such as is contemplated by the 114th Section of the Act of March 31,1860 ?

The court properly refused to quash the indictment, as the offense was charged in the very words of the act: Com. v. Kleckner, 45 Pa. Superior Ct. 179. It also was justified in refusing to direct a verdict for the defendant, for he admitted that the money had been converted and his justification had been put in issue, which clearly made the question one for the jury. The requests to charge that the defendant could not be convicted unless the jury should find beyond a reasonable doubt that the note was the property .of Hartfield, Solari & Co. and that there was no evidence in the case to show tha t the note was given to defendant for safe keeping were properly-refused. The former was a conclusion of law, the fact being undisputed that the defendant had received it in behalf of his principal, and the admission was evidence that he received it for safe keeping. The admission of the letter from Hartfield, Solari & Co. to the defendant did him no harm in view of the fact that he himself had letters and telegrams, containing the same statements of fact, introduced in evidence. This disposes of the 1st, 2d, 5th, 6th, 8th and 9th assignments of error. The 7th assignment was not argued by the appellant and needs no discussion.

There remain the 3d and 4th assignments. Under them the appellant contends that since the evidence does not show that Lettieri was an agent for more than one principal, he is not an agent in contemplation of the 114th Section of the Act of 1860; that the act had in contemplation one, whose only business was that of representing more than one principal.

Criminal pleading is no longer technical and “courts should look more to substantial justice than artificial nicety”: Com. v. Keenan, 67 Pa. 203. “The rule of strict construction in favor of the accused is not violated by giving the words a reasonable meaning accord-. ing. to the sense in which they were intended”: Com. v. Gouger, 21 Pa. Superior Ct. 217. Similar situations have arisen in other jurisdictions under statutes containing the same phraseology as the present statute and the word agent has been uniformly held to apply to an agent representing but one principal as well as one who represents many. In Hinderer v. State, 38 Ala. 415, 419, it was held that the term “agent,” as used in the Code, Sec. 3143, which provides for the ppnishment of any “agent” of any private person who embezzles or fraudulently converts to his own use any property of another which comes into his possession by virtue of his employment, means “one who is authorized to act for another; a substitute; a deputy, a factor,” In Rex v. Prince, 2 Car. & P. 517, 519, it was held that St. Geo. Ill, c. 63, for the preventing of the embezzlement of securities by agents, only includes persons to whom such securities are entrusted in the exercise of their functions or business. In Wynegar v. State, 157 Ind. 577; State v. Barter, 58 N. H. 604, and Pullan v. State, 78 Ala. 31, it was held that the word “agent” used in a criminal statute applied not only to one who is an agent to perform a series of similar acts, but to one who is engaged in performing a single act for another. These last authorities do not, however, accord with what we believe to be the meaning of the act, which is that to be an agent one must be authorized to perform acts of a similar character successively as the representative of another.

There is no doubt that Lettieri was the agent of Hart-field, Solari & Co., not only for one transaction, but for all transactions within the scope of his agency;' which agency had continued for more than four years before the embezzlement occurred. He was not engaged in one transaction on behalf of a single principal, but in a series of similar acts, which clearly made him an agent in con-, templation of Sec. 114 of the Act of March 31,1860.

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