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“ PARKER'S LANDING, PA., July 13th, 1874. “ Received of Mr. R. L. Bishop ten hundred eighty-three 66-100 barrels United oil, pipage unpaid, to be held for storage on the following terms: Five cents a barrel per month, or fifty cents for twelve months.
“ HUTCILISON & BATCHELDER."
On the 13th of Angust, Bishop, having another order drawn 11 pon and accepted in like manner by the Pipe Line Company, for 103 12-100 barrels, indorsed and delivered the same, to Hutchison & Batchelder, who underwrote the above receipt as follows:
“ August 13th, 1874, received 103 12-100 barrels, on same terms as above.
H. & B."
At the time of the delivery of these orders the oil mentioned therein was in some of the numerous tanks or miles of pipe of the Union Pipe Line Company, and was wholly undistinguishable from thousands of barrels of other petroleum in the tanks of said company.
After Hutchison & Batchelder had received the accepted orders, they deposited them to their general account with the Pipe Line Company; and were credited with the same upon the books of said company. Against said general account they drew at various times until the spring of 1875, when they became embarrassed, and in meeting their engagements continued to draw until their balance was exhausted; and the firm failed about August, 1875.
In October, 1875, the prosecutor presented his receipts and demanded the 1,186 78-100 barrels of oil, which the defendants were unable to deliver, and on the 9th of November, 1875, Bishop made a criminal information against them, and on the 7th of December following the grand jury returned an indict. ment.
The first count in substance charged that “the defendants were intrusted by Bishop with said oil to keep in their tank, as trustees and agents under and by virtue of a certain contract in writing, to deliver said oil to Bishop whenever he should demand the same on the payment of storage or tankage; that, being so intrusted, defendants did, by virtue of said trust agency, receive and take the said oil into their possession; that on the 15th of October and on the 5th of Noveinber, 1875, the prosecutor demanded said oil and tendered the amount due for storage or tankage; that defendants, having the said oil in their possession by virtue of the said trust, refused to surrender the same, and did fraudulently embezzle the said oil and convert the same to their use with intent to defraud the said Bishop,” etc.
The second count charged that “said defendants, being the agents of Bishop, with the custody and care of said oil, did unlawfully and fraudulently embezzle said oil and convert the same to their own use without the knowledge or consent, and with the intent to defraud said Bishop," etc.
The third count: That, being the bailees of Bishop and as such bailees intrusted with the custody and care of said oil, defendants unlawfully and fraudulently embezzled and converted the same to their own use, etc.
The fourth count: That defendants, being the trustees, agents and bailees of Bishop intrusted, etc., did unlawfully and fraudulently embezzle, etc.
The fifth count: That defendants, being the bailees and agents of Bishop, and as such bailees and agents intrusted, etc., did take, receive and carry away and unlawfully and frandulently convert said oil to their own use, etc., and feloniously did steal, take and carry away said oil, etc.
On the trial before Bogos, P.., before the jury were sworn, the counsel of defendants moved to quash the bill of indictment on the following grounds: that the indictment improperly charges distinct offenses, some of which are misdemeanors and others felonies; that none of the counts sufficiently charge defendants with any crime known to the law; that the first and second counts do not sufficiently charge any crime under the 113th and 114th sections of Act of 30th of March, 1860, or the third count with the crime of embezzlement at common law; that the first count does not sufficiently aver the writing creating the alleged trust; that the second does not aver that defendants carried on business as agents; nor the third that defendants are either bankers, brokers, agents, attorneys or merchants, or that they were clerks, servants or employes of Bishop, and that the fourth and fifth counts com
mingled two separate and distinct offenses, one a misdeineanor and the other a felony.
The motion was refused by the court and the defendants having entered a plea of “ not guilty” the trial proceeded.
After the Cominonwealth had closed the defendants demurred to her evidence as being insufficient in law to maintain the indictment as to those crimes which are sufficiently charged therein.
The Commonwealth joined in the demurrer, whereupon the court entered judgment as follows:
“On the demurer and joinder, jury discharged and the court, on dne consideration of the issue raised by the demurrer and joinder and the evidence, decide the issue in favor of the Commonwealth and against the defendants, and render judgment in favor of the Commonwealth and against the defendants of guilty in manner and forın as they stand indicted, and find from the evidence the property taken and trandulently converted by the defendants and not restored to be 1,186 78-100 barrels of crude petroleum oil of the value of $1.40 per barrel, in all of the value of $1,661.49."
The court afterward sentenced the defendants each to pay a fine of $5 and be imprisoned in the Allegheny county workhouse for the period of six months, to restore to the owner the property fraudulently taken and converted, or pay the value of the same, or so much thereof as may not be restored, and to pay the costs of prosecution, and be in custody until this sentence is complied withi.
The defendants applied for a writ of certiorari, the proceedings to stay until the determination of the cause in this court, which was allowed by his Ilonor Justice Williams, at Pittsburg.
Having obtained this writ, they assigned for error that the court erred in refusing to qnash the indictinent; deciding the demurrer in favor of the Commonwealth; entering judginent thereon in the manner the court did; discharging the jury; not submitting to the jury the question of the value of the property alleged to have been taken; finding the value of the property and in the sentence imposed upon defendants.
A writ of error was also taken by defendants, which it ap. peared, however, had at no time been allowed.
When the cause came on for hearing before the Supreme Court, the Cominonwealth’s counsel moved to quash both the certiorari and the writ of error for the following reasons:
1st. The writ was allowed by Hon. H. W. Williams, one of the justices of the Supreme Court of Pennsylvania, at chambers in the city of Pittsburg, on the 24th day of February, 1876, while the said Supreme Court was in session in the city of Philadelphia, where alone the application should have been made for the said writ.
2d. The time fixed for the hearing of the case was not in accordance with the Act of Assembly empowering the justices of the Supreme Court to allow writs of error in criminal
3d. There is no provision made by law for reviewing a criminal case determined upon a demurrer in the court below, and therefore neither writ of error nor certiorari will lie in this case.
In support of this motion it was contended that no writ of error or certiorari would lie under the 57th section of Act of 31st of March, 1860, Purd. Dig. 390, or the Act of 19th of May, 1874, as these acts applied exclusively to homicide cases or where a trial had been had and exceptions were taken and sealed; that no provision was made by any Act of Assembly for a writ of error in a criminal case disposed of in the court below upon a demurrer to evidence, and that as a certiorari brought up nothing but the record, and the evidence in the case is no part thereof, it could not be reviewed by this court upon a certiorari. That the only mode by which said writs could be had is found in section 59, Act of March 31, 1860, wherein the directions are explicit, that no such writ shall be allowed except within thirty days after sentence and upon special application, which application shall be made to the court in banc if sitting in any district; and it is only when the court is not sitting that the application may be made to a justice of said court, and whether allowed by the court or a justice thereof the time of liearing shall be fixed not more than thirty days after the allowance of the writ. This court will take notice of its own sessions and it is clear, therefore, that, whilst the court was sitting in Philadelphia, one of the justices of the court had no power to allow the writ in this case, and for this reason alone the writ shonld be quashed, but the departure from the Act of Assembly in fixing the time of hearing as well as the fact that a writ of error does not lie in case of a demurrer in a criminal trial are equally causes for quashing the writ.
J. Smullin and J. Gilpin, for plaintiff in error.
E. S. GOLDEN and the District Attorney, JEFFERSON REYNOLDS, for the Commonwealth.
By the court, Paxson, J.
There was a certiorari as well as a writ of error in this case. The former was specially allowed by our brother WillIAMS at chainbers. There was no allowance of the writ of error, although issued simultaneously with the certiorari. This was evidently an oversight. The Commonwealth moved to quash both writs, and assigned as reasons tlierefor: 1. Informality in the allowance of the writs, and 2. That neither certiorari nor writ of error would lie in the case. The objections are purely formal, and inasinuch as the record presents a proper case for review, we have no hesitation in allowing the writ of error nunc pro tunc. The act of the 19th of May, 1874 (Pamph. L. 219), makes ample provision for writs of error and certiorari in criminal proceedings. In all cases of felonious homicide and in all such other criminal cases as are triable exclusively in the Oyer and Terminer, said writs are of right. In all other criminal cases they may be issued whenever allowed by this court or a judge thereof.
Upon the trial in the court below a motion was made on behalf of the defendants to quash the bill of indictment. The motion was refused, and this ruling of the court forms the subject of the first seven specifications of error. We are of opinion that the first, third and fourth counts are fatally defective and ought to have been quashed. The first count charges the defendants with embezzlement as “trustees and agents:” Here is a blending of two offenses in one count, which is not allowed in criminal pleading. Embezzlement by trustees is one offense; embezzlement by agents is another, and indictable under a different section of the code. Offenses