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COMMONWEALTH v. KIMMEL. COMMONWEALTH V. KIMMEL ET AL. (11/12/52)

November 12, 1952

COMMONWEALTH
v.
KIMMEL. COMMONWEALTH V. KIMMEL ET AL.



COUNSEL

F. Lyman Windolph and Windolph & Johnstone, Lancaster, for appellant.

Paul A. Mueller, Lancaster, William C. Storb, First Asst. Dist. Atty., Lancaster, for appellee.

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

Author: Reno

[ 172 Pa. Super. Page 78]

RENO, Judge.

Appellant was convicted upon two indictments which were tried together in the court below. One indictment charged fraudulent conversion, larceny and receiving stolen goods; he was convicted of fraudulent conversion and receiving; and found not guilty of larceny. Sentence was imposed for receiving and suspended for fraudulent conversion. The other indictment charged appellant and Frank E. Hauck with conspiracy; Hauck pleaded guilty;*fn1 and appellant was convicted and sentenced for that offense.

Appellant's contentions are: First, that the evidence does not support the convictions for fraudulent conversion and receiving; and second, that the court below erroneously consolidated the trial of the two indictments.

Appellant, a junk dealer, had a contract with Armstrong Cork Company for the purchase of non-ferrous scrap material. Hauck, employe of Armstrong, was the 'leader' of its salvage yard, charged with the duty of determining which of the waste material was salvageable and which was scrap. The salvage was returned to the plant and Hauck delivered the scrap to the junk dealers who had contracted for its purchase.

Hauck testified for the Commonwealth and from his and other testimony, the details of which need not be here related, the jury could have found, and doubtless did, that in consideration of some $25 a month, Hauck 'light-weighed' the non-ferrous scrap placed on appellant's trucks, so that appellant received more material than he paid for to Armstrong. In his opinion denying a new trial, Judge Wissler, by way of example, explained the method employed by

[ 172 Pa. Super. Page 79]

Hauck: 'If the tare or empty weight of the truck was 8000 pounds Hauck would jump it up to 8300 pounds, or it was done on the gross weight, for example, if the gross weight of the truck loaded was 10,000 pounds it would be reduced to 8000 pounds. By so doing defendant would receive poundage of materials without it appearing on the records of the Armstrong Cork Company.' Appellant denied the charges generally, and specifically the existence of a conspiracy between Hauck and himself, and the jury did not believe him.

Appellant argues that when Hauck, following his instructions, divided the non-ferrous scrap from the other materials in the yard and delivered the former to appellant, pursuant to his purchasing contract, Hauck passed title to the goods to appellant, so that appellant was receiving his own goods and not Armstrong's. However valid the contention may be in respect to The Sales Act, upon which and a related case appellant relies,*fn2 it cannot prevail in this factual context. It ignores the sordid realities of this situation. Obviously, Hauck was not authorized to perpetrate a fraud upon his employer, to part with its assets for his own personal profit, or to deliver scrap to appellant without reporting its true weight to Armstrong.

Armstrong was the owner of the scrap, and the scrap was in its possession, in its yard on its premises. Hauck had charge of the yard for the limited purpose of dividing the materials and delivering the non-salvageable scrap to junk dealers. He was a mere custodian of the goods. He was like the clerk in Commonwealth v. Brandler, 81 Pa. Super. 585, 588, who was authorized to sell goods, but when ...


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