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COMMONWEALTH v. BOVAIRD (11/15/51)

November 15, 1951

COMMONWEALTH
v.
BOVAIRD



COUNSEL

J. J. McDowell and McDowell & McDowell, Bradford, Vincent M. Casey, Margiotti & Casey and Charles J. Margiotti, Pittsburgh, for appellant.

William P. McVay, Deputy Dist. Atty., Bradford, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Dithrich

[ 169 Pa. Super. Page 598]

DITHRICH, Judge.

Defendant was convicted and sentenced on six indictments, four charging fraudulent conversion and two embezzlement. The charges of fraudulent conversion were brought under § 834 of The Penal Code of 1939, 18 P.S. § 4834, and those of embezzlement under § 824 of the Code, 18 P.S. § 4824.

At the close of the 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' with those for embezzlement; and that the Commonwealth had not charged nor 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 defendant guilty as indicted the same questions were raised in motions in arrest of judgment and for a new trial. They were likewise overruled and this appeal followed.

On July 27, 1934, an 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 attorney John K. Bovaird, a brother of defendant. It recited in part that the parties had formed a 'cotenancy' to be known as Carter & Company (hereinafter referred to as the Company) for the purpose of acquiring and operating for petroleum and natural gas certain properties or tracts of land in McKean County, Pa. The proportionate share of each of said 'cotenants' was a one-fourth interest. Defendant, who described himself as a 'better than average operator,' in testifying as to what 'led up' to the formation

[ 169 Pa. Super. Page 599]

    of the company, said that there were 'only two reasons for Beth going in[to] the oil business. One was for profit and the other was based on friendship.' He said: 'Beth had two boy friends. She asked me which one to marry and I selected John Carter. * * * They were married * * * in May and when they came back to Bradford I didn't seek Beth out.' (Emphasis added.) Nobody having said that he did, was that the spontaneous statement of an innocent man or did it bespeak a guilty mind? Cf. Commonwealth v. Westwood, 324 Pa. 289, 188 A. 304. He continued: 'My wife said, 'How would you like to go into the oil business? Geordie [that is, defendant] has a very excellent property.' She said, 'We will even let you in on it. We will give it to you as a wedding present.' Mrs. Carter was 'let in on it' to the extent of $67,500, her initial 'installment' of $30,000 being followed by subsequent 'installments' of $27,500 and $10,000 each. That was her 'wedding present' from the Bovairds.

The agreement provided further that 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.'

As 'Agent' Bovaird was to receive and 'deposit * * * to a special company account, all moneys * * * realized from oil sales * * *, and to issue checks thereon.' The defendant collected the ...


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