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COMMONWEALTH v. RESTON (03/27/73)

decided: March 27, 1973.

COMMONWEALTH
v.
RESTON, APPELLANT



Appeal from sentence of Court of Common Pleas of Lawrence County, Nos. 114 and 115 of 1970, in case of Commonwealth of Pennsylvania v. Frank Reston.

COUNSEL

Richard J. Audino, with him Rea and Audino, for appellant.

James A. Caldwell, Assistant District Attorney, with him W. Thomas Andrews, District Attorney, for Commonwealth, appellee.

Wright, P. J., Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. (Watkins, J., absent.) Opinion by Cercone, J.

Author: Cercone

[ 224 Pa. Super. Page 81]

The defendant, Frank Reston, was brought to trial in the Court of Common Pleas of Lawrence County under indictments charging him with fraudulent conversion and larceny by bailee respectively. The prosecutrix, Mrs. Peggy Dodds, charged the defendant with having converted to his own use the sum of $31,200 received from her for safekeeping. The jury returned verdicts of guilty on both indictments and following the court's refusal of defendant's post-trial motions, sentence was imposed and this appeal followed.

At trial, Mrs. Dodds, age 26, testified that at the time she met defendant she was plagued by business and personal difficulties which drove her away from her 63-year-old husband and into the confidence of the defendant. She stated that in June and September of 1969, respectively, presumably in preparation for her separation, she delivered to defendant for safekeeping two brown manila envelopes containing the total sum of $31,200 in reliance on his promise to place the money

[ 224 Pa. Super. Page 82]

    in a safe-deposit box and to return it to her upon her request. She testified that defendant told her he had counted the money and had deposited it in the box as agreed. Her testimony as to the source of the funds was supported by bank records showing withdrawals from her personal accounts. The record also showed the defendant had leased a safe-deposit box two days after receipt of the first envelope and had gone to it the day following receipt of the second envelope. When the relationship between Mrs. Dodds and defendant later went awry, she testified she demanded the return of her money, but defendant refused.

In his testimony, defendant denied any personal involvement with Mrs. Dodds, contending their relationship was wholly a business one. He admitted receiving one envelope from Mrs. Dodds for safekeeping, which he placed in his safe-deposit box. Although he denied any knowledge of the specific contents of the envelope, he did testify that Mrs. Dodds told him "security or securities" were inside. Defendant also testified that in December 1969 he removed from his safe-deposit box the envelope she had given him and mailed it, by regular mail, without a return address, to the Dodds Coal Company. Mrs. Dodds and her husband testified that no such envelope was ever received.

Defendant contends that the lower court's charge and additional instructions were misleading. The defendant first complains that it was fundamental error*fn1 for the trial judge to use in his definition of both crimes the terms "money or property" instead of the $31,200 figure which actually appeared in the indictments. Defendant claims that this was a material deviation from the indictments and one which confused and misled

[ 224 Pa. Super. Page 83]

    the jury. Although it is true that the indictments charged the defendant with having received the exact sum of $31,200, it is also true that this sum was referred to as "property" at several places in the indictments. The legislature's definitions of the crimes of fraudulent conversion and larceny by bailee*fn2 contain the words "money or property" or simply the word "property" and it was, therefore, perfectly proper for the lower court to use these statutory terms in its charge and additional instructions to the jury. It has long been held that a court may instruct a jury utilizing the very language of the relevant and controlling statute: Commonwealth v. Ostrum, 70 Pa. Superior Ct. 485 (1918). Moreover, a trial court is not required to use any particular language in instructing a jury provided that the language employed adequately and fully conveys to the jury the law applicable to the facts in the case: Commonwealth v. Thompson, 389 Pa. 382, 394, 133 A.2d 207 (1957). The fact that the lower ...


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