The opinion of the court was delivered by: VAN DUSEN
VAN DUSEN, District Judge.
Relator, Carmen Gaspero, was charged in Indictment No. 2229, May Sessions 1961,
in the Court of Quarter Sessions, Philadelphia County, with fraudulent conversion. On February 3, 1964, after a trial to the court without a jury, relator was found guilty. Post-trial motions were denied by the court with an opinion dated December 2, 1964, and on January 28, 1965, relator was sentenced to a term of from one to five years. On appeal, the Superior Court being equally divided, the judgment was affirmed. Commonwealth v. Gaspero, 206 Pa.Super. 725, 213 A.2d 88 (1965).
In this Petition for Writ of Habeas Corpus, the relator alleges (1) that "The conviction was so devoid of evidentiary support so as to violate the due process clause of the 14th Amendment," and (2) "The Commonwealth failed to prove the commission of a crime of any kind. Further, the Commonwealth failed to prove that defendant was in any way responsible for any loss suffered by private prosecutor." (Document 1, paragraphs 11(a) and 12.)
In United States ex rel. DeMoss v. Commonwealth of Pennsylvania, 316 F.2d 841, 842-843 (3rd Cir. 1963), the court stated:
"The sole question before us is whether this appeal is within the rule of Thompson v. Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654 (1960) and Garner v. Louisiana, 368 U.S. 157, 82 S. Ct. 248, 7 L. Ed. 2d 207 (1961). The Court held in those opinions that it is a denial of due process for a state to convict someone upon no evidence of guilt. The Court, however, was careful to point out that '[decision] of this question turns not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all.' Thompson v. Louisville, supra at 199, 80 S. Ct. at 625. Thus, the pivotal point of our inquiry is whether the conviction of DeMoss [here Gaspero] rests upon 'any evidence' which would support the finding that he committed the crime charged."
"Without need of refinement upon the etymology of the word 'any', it is enough that we find some evidence of 'whatever * * * quantity' on all the essential elements of the charge."
The crime of fraudulent conversion in Pennsylvania is set out in 18 P.S. § 4834:
"Whoever, having received or having possession, in any capacity or by any means or manner, of any money or property, of any kind whatsoever, of or belonging to any other person, or which any other person is entitled to receive and have, fraudulently withholds, converts, or applies the same, or any part thereof, or the proceeds or any part of the proceeds, derived from the sale or other disposition thereof, to and for his own use and benefit, or to and for the use and benefit of any other person, is guilty of a felony * * *."
Only one witness testified at the trial. The defendant did not put on any evidence. Arthur Kret testified for the Commonwealth. Kret operated a rag manufacturing business at 4518 Wayne Avenue, Philadelphia, Pa. The business was conducted under the name of the Philadelphia Wiper and Supply Company and was engaged in "* * * manufacturing whitening rags" (R. 2). Gaspero was Kret's bookkeeper and Gaspero "* * * had complete charge of all the books pertaining to the business" (R. 3). Gaspero handled the checkbooks, made out the checks, took care of the receipts, disbursements and the purchase journal (R. 4, 5).
On Good Friday 1961, Kret "* * * went down to the shop to look at the books and do some other miscellaneous records" (R. 73). It was a Union holiday and the shop was closed. Kret testified:
"* * * I went to the file room. I came across that group of slips. They happened to be in one of the file boxes, or a box supposed to be sent away for filing with old records. I picked up the papers and looked at them and found they were fairly recent. I took them out and started to compare the information on them with the records that were available to me. My ...