224 S.W.2d 685 | Ky. Ct. App. | 1949
Certifying the law.
The Commonwealth alleges error to its prejudice in the judgment entered on a peremptory instruction to acquit the appellee, Louis W. Shilladay, on a charge of *479 converting to his own use property of another and asks the certification of the law. Sec. 337, Criminal Code of Practice.
The indictment, brought under KRS
Mrs. Smith had brought suit in the United States District Court against the administrators of the estate of her late first husband, John A. O'Brien, to recover of them in their individual capacity $820,000 for malfeasance or negligence in selling his interest in the firm of Edward J. O'Brien and Company and its subsidiaries. It was charged that the interest which she acquired under his will was sold for $380,000 when it was worth at least $1,200,000. See O'Brien v. O'Brien,
It is provided in the statute relating to public accountants that, "All statements, records, schedules, working papers, and memoranda made by a certified public accountant or public accountant incident to or in the course of professional service to clients by such certified public accountant or public accountant, except reports submitted by a certified public accountant or public accountant to a client, shall be and remain the property of such certified public accountant or public accountant, in the absence of an express agreement between the certified public accountant or public accountant and the client to the contrary." KRS
Mrs. Smith's testimony is that she had an oral agreement not only with Mr. Wirotzious but with the Young Company, that none of the work sheets or papers should be taken out of Louisville. She testified that the Wirotzious papers, under an express agreement, were to be and had become her individual property. Mr. Wirotzious' testimony is that at the beginning it had been agreed that the papers would remain Mrs. Smith's until after the trial of the case, and when that was over, the accountants could have the papers back if they wanted them. Thus, it was an open question whether the papers charged to have been converted were in fact *481 the property of Mrs. Smith as charged in the indictment.
The testimony as to the act charged to have been a criminal conversion is that in the afternoon of April 6, 1948, Shilladay had taken the Wirotzious papers and all his own work sheets to Chicago without having notified his client and that the four associate accountants were preparing to leave that night by train. Upon learning this, Mrs. Smith had warrants issued and they were arrested that evening and lodged in jail for the night until bond could be executed the next morning. The indictment against them, Shilladay and Groves, was returned on April 17. Shilladay was brought back to Louisville from Chicago on the requisition of the Governor, although it appears that until his arrest he had no knowledge of the institution of criminal proceedings or of the indictment against him. The detective who went for Shilladay testified he had said on April 21 that he did not intend to send the papers back until after May 1. The audit report was sent Mrs. Smith on April 22, and the Wirotzious work papers on May 1. They were accompanied by a letter concerning the testimony on the trial and stating that the papers should be returned to them after the trial for their permanent file. On April 14 Groves, for his company, had written Mrs. Smith that the audit had been substantially completed, though the report was not ready but would be submitted on or before April 25. This was the date specified in the contract. He called attention to the fact that Mrs. Smith had not paid them for their services in accordance with her agreement and asked what she proposed to do with reference to the overdue indebtedness and charges for further services. As a matter of fact, the trial of the case was postponed from May 1 to a much later date, the delay in returning the papers and in submitting the audit apparently having little if anything to do with the continuance of the case. Mr. Smith testified that the accounting firm had assured him they would give testimony and cooperate in the prosecution of the civil suit but he was not willing that they should because he did not trust them.
The peremptory instruction was given at the conclusion of the evidence introduced by the Commonwealth, the essentials of which are briefly summarized above. *482
The opinion of the circuit court recites several reasons for the directed acquittal. One of them is the conclusion that though Mrs. Smith had the right to use the papers, they were not her sole property since Wirotzious had expected them to be returned to him when they had been used for his permanent possession and control and had such right under the statute. Other reasons may be summed up as the absence of proof of a criminal intent on the part of the defendant. We limit our opinion to that point.
The letter of KRS
Of course, criminal intent may be gathered from expressly proven acts of the accused and surrounding circumstances. But if those facts do not afford a reasonable inference of a felonious intent to deprive the owner of his property, no offense has been proved. The vital difference is the accused's state of mind. If property charged to have been converted was lawfully in possession and appropriated or retained under a contract or a good-faith claim of right, the statute is not violated. Dunavant v. Commonwealth,
The law is so certified.