Facts
X. is the holder of a post office box at the Basel 2 post office. Due to an error by a postal employee, a shipment addressed to Y. containing a check from the Bank of New York for US$1,841.24 payable to Y. was placed in X.'s box at the beginning of July 1971. Although X. knew that the shipment was not intended for him, he represented himself as Y. at the Swiss Bank Corporation in Basel and requested the check be cashed. The bank ultimately paid him the equivalent of the check in the amount of CHF 7,539.20 on August 11, 1971, which X. used for private purposes.
On March 17, 1972, the Criminal Court of Basel-Stadt convicted X. of misappropriation and sentenced him to a suspended prison term of three months. The Court of Appeal of the Canton of Basel-Stadt upheld the first instance decision on the issue of guilt and sentence on August 9, 1972.
X. filed a nullity appeal with the request that the judgment of the Court of Appeal be set aside and the matter be remanded to the lower court for dismissal of the proceedings.
Considerations
The Court of Cassation holds that the criminal complaint was filed by Y., for whom the check was intended. The lower court had recognized this complaint as legally valid.
However, the Court of Cassation finds that Y. was neither the owner of the document nor the entitled party at the time of the misappropriation…