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COMMONWEALTH v. OREN (03/23/67)

decided: March 23, 1967.

COMMONWEALTH
v.
OREN, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Lancaster County, Dec. T., 1965, No. 195, in case of Commonwealth of Pennsylvania v. Fred Y. Oren.

COUNSEL

William C. Storb, with him Stein, Storb & Mann, for appellant.

Clarence C. Newcomer, First Assistant District Attorney, with him Wilson Bucher, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J.

Author: Wright

[ 209 Pa. Super. Page 301]

On March 8, 1966, Fred Y. Oren was indicted by the Grand Jury in Lancaster County on a charge of embezzlement by public officer as proscribed by Section 822 of The Penal Code, Act of June 24, 1939, P. L. 872, Section 822, 18 P.S. 4822. Oren entered a plea of not guilty and was accorded a jury trial with Honorable William G. Johnstone, Jr., presiding. After the Commonwealth rested its case, a demurrer to the evidence was overruled. Oren then testified in his own defense, and adduced the testimony of several character witnesses. A motion for a directed verdict was denied. The jury returned a verdict of guilty with a recommendation of clemency. Motions in arrest of judgment and for a new trial were dismissed, and sentence was imposed. This appeal followed.

The record discloses that appellant was Chief Deputy in the office of the Prothonotary of the Court of Common Pleas of Lancaster County. On October 17, 1963, a complaint in equity in the nature of a fraudulent debtors attachment was filed by Nancy A. Mellinger against her husband, Albert H. Mellinger, naming three persons as garnishees. An attachment was issued against the defendant and the garnishees to secure

[ 209 Pa. Super. Page 302]

    the payment of $8,500.00 alleged to be due the plaintiff under the terms of an agreement for support and maintenance. On October 23, 1963, in order to dissolve this attachment, John Milton Ranck, Esquire, deposited in the prothonotary's office the sum of $8,500.00. This sum was in currency in the form of eight one-thousand dollar bills and one five-hundred dollar bill, and was delivered to the appellant personally. On September 14, 1964, the equity action was settled and Attorney Ranck received from appellant a check for $8,500.00 drawn on the prothonotary's special account, of which account appellant was in charge. A subsequent audit of the special account revealed that the $8,500.00 had not been deposited therein.

Appellant admitted that he had received the $8,500.00 from Attorney Ranck. He stated that he had placed the money on his desk and later discovered, either that evening or the next morning, that $3,500.00 was missing. Appellant denied that he had taken this money. His explanation of the reason for not depositing the $5,000.00 in the prothonotary's special account was as follows: "Because I wanted to deposit $8,500.00 not $5,000.00 . . . I agree I should have but I didn't". The loss was not reported to anyone until appellant was questioned about the special account some time in August 1965. He then produced five one-thousand dollar bills from an envelope in a drawer in a walk-in vault in the prothonotary's office. According to the prothonotary's testimony, this drawer was marked "Oren, Private". As pointed out by the court below, there were undoubtedly other people in the office after the money was received but there is no intimation in the record that anyone else had access to the money.

The statutory provision with which we are here concerned reads in pertinent part as follows: "Whoever, being an officer, employe or agent of this Commonwealth, or political subdivision thereof, charged

[ 209 Pa. Super. Page 303]

    with the collection, safekeeping, transfer or disbursement of public money, converts to his own use, in any way whatsoever, or uses by way of investment, in any kind of property or merchandise, any portion of the public money entrusted to him for collection, safekeeping, transfer or disbursement, or proves a defaulter, or fails to pay over the same when thereunto legally required by the person authorized to demand ...


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