130 Ky. 301 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
This appeal is prosecuted from a conviction; the charge being embezzlement.
Appellant.was, and for many years had been, treasurer, secretary, and general manager of the Reinecke Coal Company, a corporation whose place of business
It sometimes happens from the nature of the case, of which the one in hand may be a fair example, that even a good indictment may fail to particularize the acts relied upon as constituting the offense, so as to fully and fairly put the accused upon notice as to what will be attempted to be proved against him on the trial, so that he may be prepared to meet it with evidence. There is no limitation against such prosecution for felony in this State. Hence time is not a necessary element in the declaration, further than
At the conclusion of the evidence for the Commonwealth, the defendant moved for a peremptory instruction to the jury to find' him not guilty, which was refused. This we think was error, for there was no evidence of his having converted any money of the corporation to his own use. At the close of all the evidence the motion was renewed, and again overruled. The Commonwealth had staked its case on a transaction in 1903, wherein appellant on behalf of his corporation had bought a tract of coal land in Hopkins county. It was shown that the vendor, one Brumley, had instructed a real estate agent to sell the land. The latter priced it to appellant for $3,300. Appellant bought it at that price, he claims. At least he paid the real estate agent that sum for it. He had no personal transaction with Brumley. The deed recites the consideration as $2,800. Brumley testified that he was paid only $2,800, of which he paid the real estate agent $50.for making the sale. The latter claims his agreement with Brumley was that the agent was to have for his commission all that he got for the land above $2,750. He admits that appellant paid him $3,300, and that he paid to Brumley only $2,750. Appellant directed the bookkeeper of the corporation to enter the purchase price on the company’s» books as $3,300. There was no evidence that appellant got a penny of the money. On the contrary, all the evidence was that he paid the real estate agent the whole
Certain letters written to C. Reinecke, who was president and principal stockholder of the corporation, written by appellant before the indictment in this ease and while he was at a sanitarium at Battle Creek, Mich., suffering from a nervous breakdown, were introduced as evidence against him. They admitted wrongdoing on his part, including the taking of money from Reinecke by appellant in the past; but they did not allude in terms or by necessary implication to the transaction now under investigation, nor did they either allude to any funds of the coal corporation. That they were written concerning the coal
So far as this record discloses, the transaction under investigation is really a dispute between Brumley and his agent, in which neither appellant nor the coal corporation appear to be now concerned.
Judgment reversed, and remanded for a new trial under proceedings not inconsistent herewith.