John Deutsch, Lehighton, for appellant.
Harold B. Bornemann, Charles C. Hileman, III, Schnader, Harrison, Segal & Lewis, Philadelphia, George Brinley Richards, Lansford, Carl A. Niehoff, Dist. Atty., Mauch Chunk, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 496]
On June 10, 1952 appellant, Kenneth Meinhart, with co-defendant Cletus Schlier, was tried in the Court of Quarter Sessions of Carbon County on two counts of an indictment charging larceny of, and malicious mischief to, certain property of the Lehigh Coal & Navigation
[ 173 Pa. Super. Page 497]
Company. The jury rendered a verdict of acquittal on the count of malicious mischief but convicted appellant on the count of larceny of fixtures under section 813 of the Penal Code, Act of June 24, 1939, P.L. 872, 18 P.S. § 4813. Appellant's motion for a new trial and arrest of judgment was denied by the court below and sentence was imposed on the verdict on November 21, 1952, from which judgment of sentence he has appealed to this Court.
Section 813 of the statute provides: 'Whoever steals or rips, cuts or breaks, with intent to steal, any glass or woodwork belonging to any building, or any lead, iron, copper, brass or other metal, or any utensil or fixture whether made of metal or other material, fixed in or to any building, or anything made of metal fixed in any land, being private property, or used for a fence to any dwelling house, garden or area * * * is guilty of larceny, a felony * * *.'
The subject of larceny in this case was a quantity of cast iron in the form of wickets which constituted a part of the locks of a canal of the Lehigh Coal & Navigation Company, located some distance from Lehigh Gap. Appellant and Schlier admittedly, on June 21, 1951, went to the locks, removed the wickets, loaded the 'scrap iron' into Schlier's automobile, drove it to Dieter's foundry at Cherryville, Northampton County, where Schlier sold it for $32, and divided the proceeds between them. The cancelled check in the amount of $32 was admitted in evidence. A great deal of corroborative evidence appears of record which, in view of appellant's admissions, we deem unnecessary to set forth in detail.
Appellant contends that because the wickets were part of the locks, embedded in the timber of the locks, they were not 'fixed to or in any building' within the meaning of the Act, and we agree. Further, he argues,
[ 173 Pa. Super. Page 498]
not being attached to the soil, they were not 'anything made of metal fixed in any land '. In support of his theory he cites the Statutory Construction Act of May 28, 1937, P.L. 1019, section 58 of which, 46 P.S. § 558, provides that penal laws are to be strictly construed. So construed, he argues, land means soil or ground only and its meaning is not to be expanded to denote realty. He contends that any other construction is inconsistent with the sense in which land is commonly defined, quoting Com. v. Bay State Milling Co., 312 Pa. 28, at page 31, 167 A. 307, 308, wherein the Court stated: ...