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COMMONWEALTH v. SOUDER ET AL. COMMONWEALTH V. CAIRNS ET AL. (TWO CASES) (01/20/53)

January 20, 1953

COMMONWEALTH
v.
SOUDER ET AL. COMMONWEALTH V. CAIRNS ET AL. (TWO CASES)



COUNSEL

Colvin, Sp. Deputy Attys. Gen., for appellant.

James P. McArdle and Paul J. McArdle, Pittsburgh, for appellees.

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

Author: Dithrich

[ 172 Pa. Super. Page 465]

DITHRICH, Judge.

Defendant-appellees, all of whom were officers of the McKees Rocks Firemen's Protective Association, at such time or times as are set forth in the several indictments, were tried and convicted on seven counts of conspiracy and fraudulent conversion. They were also charged with the mutilation and destruction of corporate records and embezzlement by officers of a corporation. At trial the Commonwealth moved to amend the several indictments by striking the words 'a non-profit corporation' therefrom and inserting in lieu thereof the words 'an unincorporated association'

[ 172 Pa. Super. Page 466]

    following the name of the association. The amendments were allowed. The trial court instructed the jury to find the defendants not guilty of mutilating and destroying records. The jury found the defendants not guilty of embezzlement, but guilty of conspiracy and fraudulent conversion.

The several defendants filed a motion in arrest of judgment on the ground of insufficient evidence, and a court en banc, having 'found that the evidence was insufficient' to sustain the charge, discharged the defendants and dismissed the case, as it felt 'required' to do under the provisions of the Act of June 15, 1951, P.L. 585, 19 P.S. § 871.

The Commonwealth on appeal contends that the lower court was guilty of an abuse of discretion in invoking the Act of 1951; but, since we are constrained to reverse the order of the learned court on other grounds, we will not go into the question of discretion.

The Act of June 28, 1895, P.L. 408, imposing a tax on premiums paid to foreign fire insurance companies and providing that one-half of such tax was to be paid by the Commonwealth to the treasurers of cities and boroughs, has been amended from time to time, the last amendment having been the Act of May 26, 1949, P.L.1825, 72 P.S. § 2262. Under the provisions of the Act, as amended, all the tax received from foreign fire insurance companies doing business within the cities, boroughs, towns, and townships of the State is paid to the treasurers of the several municipalities. The Act further provides that 'Each city, borough, town or township, receiving any payment from the State Treasurer hereunder, shall forthwith pay the amount received to the relief fund association of, or the pension fund covering the employes of the fire department * * * paid or volunteer * * * as is or are engaged in the service of such city, borough, town, or township, and

[ 172 Pa. Super. Page 467]

    duly recognized as such by the council or commissioners or supervisors, as the case may be, of such ...


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