No. 2248 Philadelphia, 1981, APPEAL FROM THE ORDER OF THE COURT OF COMMON PLEAS, CRIMINAL DIVISION, OF BUCKS COUNTY, No. 2642/1979.
Stephen B. Harris, First Assistant District Attorney, Doylestown, for Commonwealth, appellant.
Edward C. Connolly, Warminster, for appellee.
Wieand, Cirillo and Popovich, JJ. Wieand, J., files a dissenting opinion.
[ 301 Pa. Super. Page 372]
Appellee, Thomas J. Wetmore, was convicted in a jury trial of theft by deception*fn1 and theft by unlawful disposition.*fn2 After argument, the trial court granted appellee's motion in arrest of judgment and ordered him discharged. The Commonwealth has appealed that order to this court.
In 1974, an 18 year old man committed suicide. Appellee, who was then chief of police in the community, investigated the suicide and recovered a shotgun which was the suicide weapon. The following day, appellee met with the suicide's father who requested that appellee destroy or otherwise dispose of the shotgun. Appellee agreed to do so. Appellee later wrote a letter to the father, indicating that he had disposed of the gun. Approximately one year later, appellee took the shotgun to a gun shop where he disposed of it for no compensation.
[ 301 Pa. Super. Page 373]
The Commonwealth argues that the trial court erred in concluding that the shotgun had been abandoned by the father and therefore could not be the subject of a larceny. We disagree and affirm the order of the lower court arresting judgment on both charges and discharging appellee.
It is well settled law that abandoned property cannot be the subject of larceny. Commonwealth v. Meinhart, 173 Pa. Super. 495, 98 A.2d 392 (1953). Abandoned property is defined as that:
1 Am.Jur.2d § 1; Ballantine's Law Dictionary, Lawyers Co-operative Publishing Co., Third Edition, p. 1 (1969).
Abandonment involves an intention to abandon, together with an act or omission to act by which such intention is apparently carried into effect. In determining whether one has abandoned his property or rights, the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon. Black's Law Dictionary, West Publishing Co., Fifth Edition, p. 2 (1979). The intent to abandon is to be determined from all of the facts and circumstances of the case. Russell v. Stratton, 201 Pa. 277, 50 A. 975 (1902). The question of whether a particular act amounts to an abandonment is generally one of intention. Eagan v. Nagle, 378 Pa. 206, 106 A.2d 222 (1954). When deciding whether an object has been abandoned, we must consider the nature of the property, the acts and conduct of the parties in relation thereto and the other surrounding circumstances. Gilberton Contracting Co. v. Hook, 255 F.Supp. 687 (E.D.Pa.1966).
In the instant case, an abandonment occurred when the father requested appellee to destroy or otherwise dispose of the gun so it would ...