dissenting:
I respectfully dissent. A shotgun delivered to a policeman for the express purpose of destruction has not been abandoned by the owner and can properly be the subject of theft by failure to make required disposition. Therefore, I am of the opinion that the majority incorrectly affirms an order setting aside a conviction where the evidence shows that a policeman retained such a gun, used it for his own purposes, and after a year delivered it to a gun shop for sale in the normal course of business.
The shotgun which was the subject of the instant proceedings had been used in a suicide in New Britain Township, Bucks County, on October 17,1974. The father of the victim delivered the shotgun to the appellee, Thomas Wetmore, who was then the township chief of police, with specific instructions to destroy the gun so that it could never again be used by anyone for any purpose whatsoever. Appellee advised the father on several occasions, both orally and in writing, that he had carried out these instructions. In fact, he had not done so. He retained possession of the shotgun, carried it in his car for a year, and ultimately turned it over to a local gun shop, which sold it in the normal course of business.
Appellee was tried by jury and convicted of theft by deception1 and theft by failure to make required disposition.2 The trial court subsequently granted appellee’s mo*377tion in arrest of judgment.3 No determination was made of a motion for new trial which had also been filed. From the order arresting judgment, the Commonwealth appealed.
Theft by failure to make required disposition is defined at 18 Pa.C.S. § 3927(a), where it is provided in relevant part as follows:
A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition ... is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payments or disposition ....
The offense, derived from the Model Penal Code, has four elements: (1) the obtaining of property belonging to another; (2) an agreement or known legal obligation to make a specified disposition; (3) an intentional dealing with the property as one’s own; and (4) a failure to make the required disposition. See Commonwealth v. Crafton, 240 Pa.Super. 12, 16, 367 A.2d 1092, 1094-95 (1976).
A review of the evidence in the instant case discloses that these four elements were present in and a part of appellee’s conduct. He obtained the property of another subject to an express agreement to dispose of it by destruction; however, he dealt with it as his own and failed to make the required disposition.
I am unable to agree with the majority that the gun had been abandoned when the offense was committed. “Abandoned property” has been defined as “that to which [the] owner has relinquished all right, title, claim and possession, *378with intention of not reclaiming it or resuming its ownership, possession or enjoyment.” For property to be abandoned, there must be the concurrence of a physical act, such as a throwing away of property, and the intention of not reclaiming it. See Black’s Law Dictionary (5th ed. 1979). When the gun was delivered to appellee an abandonment had not occurred. The physical act of abandonment, i.e., the destruction - of the gun, was to be effected by appellee. Until he destroyed the gun, it could be reclaimed by the owner. Until rendered inoperable by appellee, the weapon was not available for appropriation by the next comer; appellee was merely a bailee, an agent authorized to make disposition as directed by the owner.
In this respect, the facts are not analogous to the throwing away of garbage. Rather, they are similar to the situation in which a desk is to be delivered to a charity or where a rabid dog is delivered to a game warden for destruction. In these situations, a relinquishment of the rights of ownership does not occur until the desk has been delivered or the dog has been put to sleep. Where an item of property has been delivered to another for purposes of destruction, there is no abandonment until the property has been destroyed. If the bailee does not destroy the property and keeps it for his ovni use, he can be prosecuted for theft by unlawful disposition.
It may be, as appellant contends and the majority concludes, that considerations other than are apparent in the instant case prompted the legislature to define theft in the manner of 18 Pa.C.S. § 3927(a). This argument, however, does not alter the fact that the conduct attributed to appellee by the Commonwealth’s evidence in this case is precisely what has been made criminal by the legislature. If the result seems undesirable, that is an argument to be made to the legislature.
Accordingly, I would reverse the order arresting judgment on the conviction for theft by failure to make required disposition and remand for a determination of appellee’s motion for new trial.
. 18 Pa.C.S. § 3922.
. 18 Pa.C.S. § 3927.
. Theft by deception can be committed only by one who “obtains or withholds property of another by deception.” 18 Pa.C.S. § 3922(a). In this case, there is no evidence that appellee “obtained” the gun by deception. Moreover, he did not “withhold” the gun. “Withhold” is defined in Black’s Law Dictionary (5th ed. 1979), as “[t]o retain in one’s possession that which belongs to or is claimed or sought by another.” Possession of the gun in the instant case had been surrendered, and there was no effort to re-claim such possession by the person or persons having rights of ownership therein. The offense, if any, lay in the failure to dispose of the gun as instructed. Therefore, I agree with the majority that judgment was properly arrested on the conviction for theft by deception.