The opinion
*65 Dissenting Opinion by
Mr. Justice Allen M. Stearne:
The majority opinion, like those of the Superior Court and trial court, avoids the question which is the keystone of the defense, viz.: who was the “other person” from whom defendant took property?
Defendant was convicted on four indictments charging fraudulent conversion and two indictments charging embezzlement. The plain language of the appropriate sections of the penal code, which are quoted verbatim in the majority opinion, so clearly require the taking of another’s property as an element of each crime that it is almost superfluous to cite authority. President Judge Keller said for a unanimous court in Commonwealth v. Mitchneck, 130 Pa. Superior Ct. 433, 435 , 198 A. 463 : “The gist of the offense of fraudulent conversion is that the defendant has received into his possession the money or property of another person, firm or corporation, and fraudulently withholds, converts or applies the same to or for his own use and benefit, or to the use and benefit of any person other than the one to whom the money or property belonged. If the property so withheld or applied to the defendant’s use and benefit, etc., did not belong to some other person, etc., but was the defendant’s own money or property, even though obtained by borrowing the money (Com. v. Bixler, 79 Pa. Superior Ct. 295 ), or by a purchase on credit of the property (Com. v. Hillpot, 84 Pa. Superior Ct. 454 ; Com. v. Overheim, 106 Pa. Superior Ct. 424 , 162 A. 475 ), the offense has not been committed. ‘Whatever may have been the intention of the legislature in the enactment of the statute under which the indictment in this case was drawn, it was clearly not intended to make criminal the act of one who sells his own property, and it is not to be so applied as to make it an effective substitute for an action *66 at law in the collection of a debt’: Com. v. Hillpot, supra, p. 458 .”
The status or capacity in which defendant received the money which he is charged with misappropriating is totally irrelevant to the question of who owned such money. The majority assert that “He [defendant] had no immediate right of ownership as cotenant to these monies received qua, agent”, but they make no effort to decide who did have its ownership. If anyone other than the cotenants owned the money, then the indictments are fatally defective because they charge defendant with taking “funds of Carter and Company.” Under such indictments, defendant cannot be convicted for taking funds which did not belong to Carter and Company.
On the other hand, if the funds did belong to Carter and Company, then we are squarely faced with the question whether a man who misappropriates money, in all of which he has an undivided one-fourth interest, is taking the property of another person. All authority answers with an unqualified negative. 29 C. J. S., Embezzlement, sec. 8: “A fundamental principle of the common law is that one cannot steal his own property, and the general rule, therefore, is that the ownership of the property alleged to have been embezzled must not be in accused, either in whole or in part. . . .” (emphasis supplied) Practically the same words appear at 2 Wharton’s Criminal Law (12th ed.) p. 1597.
In In re Lon Sanders, 23 Ariz. 20 , 201 Pac. 93 , the following statement from the case of State v. Reddick, 2 S. D. 124, 48 N. W. 846 , 8 Am. Crim. Rep. 204, is quoted with approval: “ ‘It need hardly be stated that under the general statute defining embezzlement as a criminal offense the rule is that the fraudulent misappropriation of partnership funds by one of the part *67 ners does not constitute embezzlement, for each partner is the ultimate owner of an undivided interest in all the partnership property, and none of such property can be said, with reference to either partner, to be the property of another, . . .’ ”
The annotation to this case at 17 A. L. R. 982 includes the following quotations: “ Ht is well settled that a partner cannot commit a crime by any acts relating to the possession of the partnership property, such as embezzlement, larceny, or burglary, for he is both principal and agent’ ” State v. Matthews, [ 129 Ind. 281 , 28 N. E. 703 ].
“ ‘A partner cannot be guilty of embezzlement of partnership funds, because such partner combines in himself at once the character of principal and agent. The partners have a community of property and interest in the partnership effects. In law they are treated in a qualified sense, as joint tenants of the partnership property, having an interest therein “per my et per tout.” ’ ” Napoleon v. State, [3 Tex. App. 522].
“ “The statutes of nearly all the states which undertake to define embezzlement require that the subject of the offense shall be shown to be The property of another,’ and this has almost universally been construed to mean that it must be wholly the property of another. It has resulted that, as a rule, a member of an ordinary partnership could not be convicted of embezzlement of partnership property.’ State v. Kusnick, . . . 45 Ohio St. 535 , 4 Am. St. Rep. 564 , 15 N. E. 481 .”
While we have no direct authority for this rule in Pennsylvania, the very fact that the Legislature thought it necessary to make fraudulent conversion of partnership property a separate crime (Act of June 24, 1939, P. L. 872, sec. 835, 18 PS 4835) indicates the feeling that a partner in the absence of such a statute could *68 not be found guilty under the general fraudulent conversion statute. (The original indictments under the above partnership statute were withdrawn because the district attorney concluded that this business relationship was not a partnership but a cotenancy). The only possible reason for requiring a separate statute for embezzlement of partnership funds is that in taking partnership property, a partner would not be taking the property of another. Exactly similar reasoning compels the conclusion that a cotenant is not taking property of another when he misappropriates funds of the cotenancy. If such conduct is to be deemed criminal, it must be made so by new legislation and not by an expansive construction of an existing criminal statute. However true it may be as stated by the majority that “Criminal pleading is no longer the technical thing it once was . . .”, it remains the law that penal statutes are to be strictly construed: Act of May 28, 1937, P. L. 1019, sec. 58(1), 46 PS 558(1).
Assuming, but not conceding, the propriety of the majority’s conclusion that the rules of law painstakingly developed in actions relating to real property are not to be followed in criminal cases, I find no precept of the criminal law which authorizes incarceration of a man for stealing his own money or money in which he has an interest. However gross defendant’s violations of his duties as agent may have been, they were not criminal under any statute or rule of law of this Commonwealth. As I read this testimony in its entirety, it appears to me that this should be but a civil case in equity for an accounting, where equity’s decree, if necessary, could be enforced in personam,.
For this reason, I dissent. I would reverse the judgments of the learned courts below and order defendant discharged.