125 Ky. 245 | Ky. Ct. App. | 1907
Opinion op the . Court by
Reversing.
The appellee, John W. Kelly, was indicted by the grand jury of Trigg county, charged with the offense of ©mbezzeling certain money and notes which were in' his hands as master commisisoner of the Trigg circuit court. A general demurrer to the indictment was interposed by the defendant and sustained by the court, and the indictment dismissed. From this judgment, the commonwealth has appealed.
As the question involved is both novel and important, we insert the indictment and the act under which it was found in full: ‘ ‘ The grand jury of Trigg county, in the name and by the authority of the-commonwealth of Kentucky, accuse John W. Kelly of the crime of fraudulently and feloniously disposing of and converting to his own use money and property of another held in trust by him without the consent of the owner thereof, committed in the manner and form as follows, to-wit: That said Kelly did in the county and state aforesaid, on the —— day of —-, 1906, and before the finding of this indictment, willfully, fraudulently, and feloniously and without the consent of the owner thereof dispose of and convert to his own use certain property hereinafter described and same was felonious and fraudulent, in this: that said Kelly was on or about February 15th, 1898, by the regular
“An act to make it unlawful for a person to fraudulently dispose of the property of another, and to provide a punishment therefor.
“Be it enacted by the Gleneral Assembly 6f the commonwealth of Kentucky:
“Section 1. That any person who shall sell, dispose of or convert to his or her own use or the use of another, any money, property, or other thing of value, without the consent of the owner thereof, shall be punished by confinement in the penitentiary for not less than one nor more than five years; if the money, property, or other thing of value, so sold, disposed of or converted to his or her own use be of tbe value of twenty dollars or more; or be confined in the county jail for not less than one nor more than
In the case of Commonwealth v. Barney, 115 Ky. 475, 24 Ky. Law Rep. 2352, 74 S. W. 181, the statute under consideration came before this court for the first time. It was there held that the law was.constitutional, and that it was not necessary that the word “embezzlement” should be used, although the act was manifestly an extension of the statutes of the state to prohibit the misappropriation by trustees of trust funds; but it should be construed to include only the misappropriation of funds or property held in a fiduciary capacity; and therefore it was necessary that the fiducial relation existing between the accused and the owner of the property alleged to be misappropriated should be charged. The indictment in this case was evidently drawn under the light of the opinion in the case cited, and it clearly contains every allegation which was there held to be essential to constitute the offense under the act under discussion. It is, however, earnestly insisted by appellee, and it was doubtless the opinion of the trial court, that the indictment in this case was defective, in that it fails to allege that a demand for the trust money of the defendant, or a refusal on his part to pay, and the soundness of this position is the question before us on this appeal.
It may be conceded that the authorities are not altogether harmonious upon the question of the necessity of a demand being alleged in an indictment for an offense such as the one charged here. A good deal of this want of harmony in the adjudged cas«s doubtless grows out of the difference in the language used in the various statutes creating the offene. As embezzlement is wholly a statutory offense, of neces
We are referred with great confidence by the appellee to the case of Commonwealth v. Lewis, 12 S. W. 266, 11 Ky. Law Rep. 421, as establishing the principle that in a case like the one at bar a demand of the trust fund is a necessary allegation in an indictment for the crime of embezzlement. Assuming that this case is in point, it was, for all practical purposes, overruled in the. case of Commonwealth v. Fisher, 113 Ky. 491, 68 S. W. 855, 24 Ky. Law Rep. 300, where on the question of demand being necessary to constitute the offense of embezzlement under section 1205, Ky Stats., 1903, it was said: “The indictment is clear and explicit in averring all the facts necessary to constitute the offense denounced by the statute, and it has never been held that a demand for
For these reasons, the judgment sustaining the demurrer to the indictment and dismissing it is reversed for proceedings consistent with this opinion.