163 Ky. 48 | Ky. Ct. App. | 1915
Opinion op the Court by
Reversing.
Charles Clary was indicted in the Daviess Circuit Court charged with the crime of embezzlement, as denounced by Section 1202 of the Kentucky Statutes. Upon his trial under this indictment he entered a plea of not guilty, and was found guilty by the jury, and sentenced to imprisonment for an indeterminate period of not less than one year nor more than two years, and judgment was pronounced upon the verdict by the court in accordance with it. The defendant filed grounds and moved the court to set aside the verdict of the jury, and to grant him a new trial, which the court overruled. He now asks that the verdict and judgment be set aside and a new trial granted him for the following reasons:
First, because the indictment against him is insufficient in law, and because the court overruled his demurrer to the indictment; second, because the court erred to his prejudice in permitting incompetent testimony against him upon the trial, to which he objected at the time, and his objections were overruled by the court; and, third, because the court misinstructed the jury as to the law of his case, and failed to instruct the jury upon the whole law of the case.
While the crime denounced by this statute is a species of larceny, it is one of those aggravated forms of larceny, which may be committed regardless of the value of the property converted. The punishment in this case is without reference to the value of the property taken, and for that reason the value need not be stated in the indictment. As to the value of the property converted the same rule would seem to apply in reference to a crime under this statute, as it would, where one of the forms of simple larceny is charged; that is, if the property converted has any value, the crime may be committed by converting it in the manner denounced in the statute.
The complaint of appellant that the indictment does not with sufficient particularity describe the goods which he is charged with embezzling, is a complaint of more substantial character. The description of the property
Sub-section 4 of Section 124, Criminal Code, is mandatory in this, that the particular circumstances of the offense charged, if they be necessary to constitute a complete offense, must be set out in the indictment.
This court, in the case of Bradley v. Commonwealth, 132 Ky., 519, said this: “It is, however, now insisted by the Commonwealth that the indictment is good as to the charge of embezzlement. ~We cannot assent to this conclusion, and, without reiterating the defects in the indictment, it is sufficient to say that embezzlement is a purely statutory offense partaking much of the nature of larceny. Therefore, ‘the property embezzled must be described with the same particularity and the ownership stated with the same degree of care as is required in an indictment for larceny. ’ * * * ’ ’ Thus, quoting Boberson’s Criminal Law and Procedure, 464. That author, in the section quoted from, not only uses the language above quoted, but further says: “The omission to describe the property is a fatal objection at any stage of the case, including the motion in arrest of judgment.”
In 15 Cyc., page 514, this language is found:
“An indictment or information for embezzlement shoRild describe the property alleged to have been embezzled with such certainty as to identify it, and give defendant full and fair information as to the charge, and be a bar against another prosecution. The same, but no greater, particularity of description is required in an indictment for larceny.”
In 25 Cyc., page 75, in describing the certainty of the description of the goods alleged to have been taken, that is necessary in an indictment for larceny, it says: ‘ ‘ The description must be sufficiently certain to enable the jury to identify the property described in the indictment with that referred to by the evidence, and to show the court that the property is a subject of larceny.”
To charge one in an indictment for embezzlement, with fraudulently converting to his own use “goods, wares, and merchandise,” might mean a thousand articles, which can be properly included in a description, of
Roberson on Criminal Law and Procedure, Section 464 says: “If it is impossible to give an exact description of the property, the best description practicable should be given, and, if the description given is indefinite, a reason for not giving a better one should be stated.”
In 25 Cyc., page 77, referring to an indictment for larceny, it is said: “Where an offense is substantially set out in an indictment a matter of description may be omitted, where a good excuse for such omission is given, as that a fuller description is unknown. But, if the description was not unknown as alleged, it is a fatal variance. ’ ’
Neither of these sections from the above authors would justify the upholding of an indictment, and a conviction under it, for a larceny of personal property, where the indictment contained no description of the property at all. It was never intended that any one could be put upon trial or convicted upon a charge” of embezzlement, or of larceny of articles of personal property without some kind, or at least a partial description. It will be observed that the rule as laid down by Roberson only provides that where an exact description of the property cannot be given, and in Cyc., where a fuller description is unknown, are the instances in which an excuse may be made for it and the indictment upheld. Under the indictment in the case at bar the jury could not from the evidence apply the articles alleged to have been fraudulently converted to the indictment, and find that they were tire same as those referred to in the indictment. Neither, would the accused have fair notice of the accusation, which he is called upon to answer, or-such'notice as would be fair and just to him, when called
It is impossible to see how it could be known that the appellant had fraudulently converted personal property owned by the corporation, which he was. in the service of, and still it not be known what was the character and description of the property that he had converted.
. The bill of particulars, which, upon motion of appellant, were filed and used upon the trial, did not cure the indictment. A bill of particulars is not designed to uphold an insufficient indictment, but such bill is designed only to be used where the indictment is sufficient upon demurrer; but in the sound discretion of the trial court, and in furtherance of justice, in order to give the defendant fair notice. of what he is called upon to defend, in some states of case, upon motion of the defendant, a bill of particulars may be required. Such a state of case, for instance, as where an individual has occupied a position as a servant, agent, or clerk for some corporation for a great many years, and, in the course of that time, has handled a great deal of money from time to time in different amounts for the corporation, and upon an indictment for embezzlement, the accusatory part of the indictment charges him with embezzling money belonging to his employer, and, as he would not be able to know the time with precision upon which he is charged with converting the money nor out of which particular circumstance the accusation grew, he may demand a bill of particulars to indicate the exact charge which he. is called upon to answer.
Section 135 of the Criminal Code provides: “That in an indictment for larceny or embezzlement of money or United States currency or bank notes it is sufficient to allege the larceny or embezzlement of the same without specifying the number, or denomination, or kind thereof. ’ ’ This is the only exception to the rule requiring a description of the property alleged to have been embezzled.
The cases of Commonwealth v. Barney, 115 Ky., 475; and the case of Bailey v. Commonwealth, 130 Ky., 305; and the case of Travis v. Commonwealth, 96 Ky., 77; and of Schlitzbaum v. Commonwealth, 26 R., 52, are not cases in point upon the question involved in this case. In these cases the accused was charged in the indictment with converting sums of money, and in each case stating the number of dollars alleged to have been converted,
In the case of Commonwealth v. Bailey, supra, the description of the property converted was money, effects-, and property to the value of $500.00, and the court held that because it charged the converting óf money, and gave the amount of it, under Section 135, supra, of the Criminal Code, that was a sufficient description of the property converted, and that the words ‘ ‘ effects ’ ’ and “property” were not sufficient to sustain' the indictment, and should be considered as mere surplusage. A sufficient description of the articles . embezzled in the indictment in this case would have been 2 dozen bed sheets, 2 silk kimonos, 2 silk dresses, 12 napkins, 2 dozen towels, etc., as described in the bill of particulars.
For these reasons the court was in error when it overruled the general demurrer of the appellant to the indictment.
The appellant’s objection to the proof offered tending to show that he had confessed his guilt of the crime charged in the indictment is not well taken. A confession by an accused out of court is always competent evidence against him upon the trial for such offense, if his confes-' sion was freely and voluntarily made. If he was induced to make such a confession by an officer having him in custody, or by some person in authority over him, by holding out to him some advantages to be gained by bim in’ making the confession, or by using threats or some duress to induce the confession, it is not competent evidence against him. In the instant case the appellant does not seem to have been influenced in making the alleged confession, either by the “flattery of hope, or the torture of fear.” There was no inducement held out to him; in fact, the president of the corporation said to him that he could make him no promise of immunity of any kind. There is no pretense that he was threatened, or put in fear, or unduly pressed about the matter. He was not under arrest, nor in the custody of any officer. While it appears that one of the persons present was an officer,
On the trial below the appellant testified that he purchased from the corporation employing him certain articles which he is accused of converting to his own use fraudulently, and that same were charged against him upon the books of his employer, and they had been settled for by him in the settlement of his wages. Certain other articles which he is charged with converting he stated that he bought from his employer, and for some of themhepaid cash, and made out tickets, according to the manner of the business, showing’ the purchases and the tickets he turned in to the cashier of his employer, and as. to other articles, he claimed that he had purchased them, and made out a credit ticket, and that those tickets, were turned in to the' cashier, and, according to the manner of the conduct of the business, those tickets, both the cash tickets and the credit tickets, at the end of each day, were delivered by the cashier to the bookkeeper, who made a memorandum of all of those items upon the books of the corporation. In attempted rebuttal of this testimony by the appellant, the bookkeeper was- called as a witness, and she was allowed to testify, over the objection of the appellant, that the books showed no entries, of the purchases which appellant claimed that he had made, and that there were no tickets which showed that he had bought any of the articles claimed', either for cash or upon credit.
On the trial the president of the corporation, in detailing a conversation with the appellant, in which the appellant is alleged to have confessed his- guilt, over the objection of the appellant, was allowed to make the following statement: “I took you back before with the solemn promise before God that you would never take anything else.” It appears that the appellant had been in the service of the corporation for thirteen or fourteen
As to the complaint of the appellant that the court misinstructed the jury as to the law of his case, we see
Instruction number two was in the following language: “If from all of the evidence you have heard in the ease you entertain a reasonable doubt from said evidence, as to whether or not the defendant is proven to be guilty, you should find him not guilty, and so state in your verdict.”
Upon another trial the court should give that instruction substantially as provided for by Section 238 of the Criminal Code, because, in the form in which it was given by the court below, it might be concluded that it was the duty of the jury to convict him if they entertained a reasonable doubt of the evidence showing him to be not guilty, when it is its duty to acquit when, from the evidence, they entertain a reasonable doubt of his having been proven guilty.