No. 1262 October Term, 1977, Appeal from Order of the Court of Common Pleas, Tioga County, Criminal, Dated February 11, 1977 at No. 328, 1975.
Harold G. Caldwell, Troy, for appellant.
Rudolph J. Van der Hiel, District Attorney, Wellsboro, submitted a brief for Commonwealth, appellee.
Watkins, President Judge, Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort and Spaeth, JJ., concur in the result. Jacobs, President Judge, dissents. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 464]
Appellant, William R. Austin, was convicted, in a non-jury trial in the Court of Common Pleas of Tioga County, of violating Section 3927 of the Pennsylvania Crimes Code, "Theft by failure to make required disposition of funds received" 18 Pa.C.S. § 3927. Defendant's post-trial motions were denied. Sentence was suspended and defendant was placed on probation for a period of twelve months on the condition that he pay the costs of prosecution. Defendant appealed. We reverse the decision of the lower court.
Mr. and Mrs. Joseph E. Carey contracted with the appellant, a construction contractor, to do work on their home. Based on an estimate of the work to be done prepared by appellant, the parties entered into the following contract:
Mr. and Mrs. Joseph E. Carey
Austin Construction agrees with the above party to do said work listed below for $4,175.00. The price includes materials and labor. The amount of $2,495.00 will be paid in advance and an amount will be drawn each week. ...