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Commonwealth v. Tluchak

Citation. 22 Ill.166 Pa. Super. 16, 70 A.2d 657 (Super. Ct. 1950)
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Brief Fact Summary.

The Appellants, Mr. and Mrs. Tluchak (Appellants), filed separate appeals for larceny convictions. The case arose out of a real estate transaction, whereby the Appellants sold their farm to the prosecutor and his wife.

Synopsis of Rule of Law.

An individual in lawful possession of the goods or money of another cannot commit larceny by converting them to his own use because larceny is defined as a criminal trespass on the right of possession.


Appellants agreed to sell their farm to the prosecutor and his wife. The agreement did not cover any personal property, but it did include “all buildings, plumbing, heating, lighting fixtures, screens, storm sash, shades, blinds, awnings, shrubbery and plants.” When the purchasers took possession, they found out that certain articles that were on the property at the time the sale agreement was formed were missing. The items charged in the indictment as the subjects of the larceny were an unattached commode, an unattached washstand, a hay carriage in the barn and some peach trees. The Commonwealth claimed that the articles not covered by the written contract were sold as part of an oral agreement. The Appellants denied the existence of an oral agreement, denied the sale of any personal property, denied taking the peach trees, but admitted they took the carriage. They also contended that all of the articles rightfully belonged to them. The jury found appellants guilty of larceny


Do sellers who refuse or fail to deliver goods sold to their purchasers commit the crime of larceny?


No. Judgment and sentences reversed. Judge Reno delivered the opinion of the court. Assuming that the testimony in this case established a sale of the personal property by Appellants to the prosecutor and his wife, Appellants sold, but failed or refused to deliver the goods to the purchasers. The evidence showed that Appellants had possession of the goods and were allowed to retain possession without trick or artifice and without fraudulent intent to convert the goods. Title passed at the time of payment, but Appellants still had lawful possession at that time.


Appellants may have been guilty of fraudulent conversion or larceny by bailee. This would be true under the theory that a vendor who retains possession of goods sold by him becomes constructively a bailee of the purchaser and is therefore criminally culpable for a failure to deliver the goods to the purchaser.

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