Clark v. Commonwealth

97 Ky. 76 | Ky. Ct. App. | 1895

JUDGE GUFFY

DELIVERED THE OPINION OE THE COURT.

In November, 1894, an indictment was returned by the grand jury of Jefferson county against the appellant, S. M. Clark, accusing him of the crime of embezzlement, averring; in substance that he being an agent and servant of the-Singer Manufacturing Company, a corporation existing under the laws of the State of New Jersey, and at the time doing business in Kentucky, did feloniously, wilfully, etc., convert to his own use $271.25 in lawful money, the personal property of said corporation, which had come to his hands-etc. as such agent, and had wholly failed to pay over or account for. the same. A demurrer to the indictment was. overruled by the court and a trial in tlie Jefferson Circuit Court resulted in a verdict of guilty and fixing the punishment of appellant at confinement in the penitentiary for a term of three years.

Defendant filed grounds for and moved the court for a new trial, which motion was overruled by the court, and judgment entered in accordance with the verdict, and defendant has appealed to this court and asks a reversal upon the following grounds, viz:

1. That the verdict is contrary to law.

2. Because the verdict is contrary to the evidence.

3. Because the court erred in the instructions given.

4. Because the court erred in not giving the full law of the case.

Appellant also insists that the court should have given a peremptory instruction to find for defendant,and that it was not shown that the Singer Manufacturing Company was legally organized, and that the demurrer should have been sustained. That as defendant was entitled tó a commission of 5 per cent, on the money for collecting, etc., that he could not be guilty of embezzlement.

It seems to us that the organization of the company was sufficientlyproven,and that the demurrer was properly overruled. There was some proof introduced conducing to show that defendant had converted to his own use some of the money which, as agent of the corporation, he had collected. The written contract filed, together with other evidence, seems to show that defendant was the agent of said company. If the defendant was the agent or servant of the corporation the fact that he was entitled to 5 per cent, for collecting -would not protect him if he in fact embezzled the money so collected. See 6 American and English Encyclopedia of Law, pages-475-C, and numerous cases there cited. It is true that where one follows collecting on commission as a business he can not be found guilty of the crime of embezzlement on account of failure to pay over. Numerous decisions might be cited to this effect, but the above reference is deemed sufficient. No proof at all was introduced by defendant tending or attempting to show that collecting was an independent business in which he was or had been engaged, nor any proof contradicting or explaining the evidence adduced by the prosecution.

Although the punishment may be severe or seem harsh, yet this court has no legal power to interfere. The jury were the judges of the evidence and also of the punishment to be inflicted, within the limits prescribed by law.

The judgment is therefore affirmed.