Harry A. Estep, Charles D. Coll, Spec. Deputy Attys. Gen., Pittsburgh, Frank F. Truscott, Atty. Gen., for appellant.
A. C. Hepps, Homestead, for appellees.
Before Rhodes, P. J., and Hirt Ross, Gunther, Wright, and Ervin, JJ.
[ 175 Pa. Super. Page 561]
The defendants were brought to trial in the Court of Quarter Sessions, in and for Allegheny County under several indictments charging them with conspiracy and fraudulent conversion. At the conclusion of the Commonwealth's case the court below sustained defendants' demurrer. The Commonwealth has appealed to this Court.
The funds with respect to which the defendants are alleged to have conspired and which they are charged with converting arose under the Act of June 28, 1895, P.L. 408, as amended, 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 Commonwealth is paid to the treasurers of the several municipalities. It is provided: 'Each city,
[ 175 Pa. Super. Page 562]
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 duly recognized as such by the council or commissioners or supervisors, as the case may be, of such city, borough, town, or township.'
On or about March 1, 1898, a charter was issued to an organization designated as the 'Homestead Fireman's Relief Association'. The charter provided: 'That said corporation is formed for the purpose of providing for and maintaining a fund for legacies, bequests, and other sources for the relief and the support and burial of its members who may be crippled or killed, or who may be prevented from attending to their usual occupation or calling on account of chronic ailment or permanent injuries caused by exposure or accident during the discharge of their duties as firemen, and for the pensioning of widows and orphans, or dependent parents of members who may be killed, or who may die from injury received while in the discharge of their duties as firemen, and for such expenses necessary for the maintenance of this Association.'
On November 28, 1934, council of the Borough of Homestead passed a resolution in the following terms: 'Resolved that the Town Council of the Borough of Homestead, Commonwealth of Pennsylvania, recognize the Homestead Volunteer Fireman's Relief Association of the Borough of Homestead and in pursuance to the Act of April 25, 1929, P.L.709, and the amendments thereto, authorize the payment of the tax therein mentioned by the Treasurer of the Borough of Homestead, Pennsylvania, to the Homstead Fireman's Relief Association of the Homestead Fire Company, the above
[ 175 Pa. Super. Page 563]
company being the company which affords fire protection to the inhabitants of ...