129 Ky. 294 | Ky. Ct. App. | 1908
Lead Opinion
Affirming.
The appellant wa's indicted under section 1202 of the Kentucky Statutes of 1903, providing in part that: “If any officer, agent, clerk or servant of any bank or corporation shall embezzle or fraudulently convert to his own use or the use of another, money * * * belonging to such bank or corporation * * * which shall have come into his possession * * * as such officer, agent, clerk or servant, * * * he shall be confined in the penitentiary for not less than one nor more than ten years.” The indictment charged that appellant, who was indicted as Homer Marion, alias Homer Morris, alias P. Homer Morse, while acting as the agent of the Consumers ’ Distilling Company, a corporation under the laws of Kentucky, had by virtue of his- agency collected and received $59.95 from Henry Staggenburg for whisky sold and to be delivered, and did unlawfully, fraudulently, and without the consent of the Consumers’ Distilling Company embezzle and convert to his own use the said sum of money, with the fraudulent and felonious intent then and there to convert the same to his own use, and to permanently deprive the company of its property therein. Upon a trial under this indictment, he was convicted, and his punishment fixed at two years’ confinement in the State penitentiary. We are asked to reverse the judgment of conviction chiefly because the court erred in the admission and rejection' of evidence and also for error in the instructions given to the jury.
A brief statement of the facts will aid in understanding the force of the objections raised. The
Henry Staggenburg testified that he was a saloon keeper in Covington, and that on July 22, 1907, a man named Homer Marion came to his place of business with samples of whisky, order blanks, and certificates, and that he bought from him three five-barrel certificates, for which he paid him at the time $29.95
Tbe appellant, when introduced as a witness in bis own behalf, testified that be bad acted as agent -for tbe Consumers’ Distilling Company for a short while, and during the time bad sold wbisky to Murphy and Davis, but bad not sold or attempted to sell any wbisky to either Staggenburg, Hennessy, Dennis, Sidler, or Schutte; nor bad be collected from them any money. He attempted in tbe course of bis examination to place these transactions upon Bradford Morse, and denied that be ever assumed the name of Homer Marion, or Homer Morris, but admitted that at one time be bad assumed tbe name of E. B. Morse. Over bis objection, the Commonwealth was permitted to ask him if be bad not been indicted and convicted in tbe federal court as E. B. Morse for a fraudulent use of the mails. He was also required to state that, as E. B. Morse be bad rented property some years before tbe trial from a man named Rolson, and was also interrogated concerning other incidents in his life that bad no bearing upon tbe offense be was charged with, except to show that at various times be bad assumed different names. Tbe defense of appellant -was rested entirely upon tbe fact that tbe crime be was charged with was committed by Bradford
The first question presented is the competency of the evidence of Hennessy, Dennis, Sidler, and Schutte. The trial court admitted the evidence of these persons for the purpose of showing a criminal intent upon the part of the accused, and admonished the jury that this was the only purpose for which their testimony was received. Considering the defense interposed by appellant, we are of the opinion that, although the evidence was competent, the reason for its admission given by the trial judge was erroneous. It was relevant and admissible for the purpose of establishing the identify of the accused, but not, as we will presently show, for the purpose of showing a criminal intent upon his part. The grounds upon which it was admitted are not, however, material. It was competent evidence, and the appellant was not prejudiced by the erroneous reason assigned by the lower court. The accused denied that he had ever assumed the names of Homer Marion, or Homer Morris, and that he had any transactions with Staggenburg. It wa.s therefore competent to prove not only by Staggenburg, but by the other witnesses who about the same time knew him or had similar transactions with him, that in dealing with them he represented himself to be Homer Marion, and to prove by them that appellant was the identical person whom they knew as Homer Marion. This evidence might have been made by as many persons as were able to identify him without reference to whether they had business transactions with him or not. In the examination of these witnesses for the purpose of fully identifying the accused, it was also permissible to allow them to relate the circumstances under which they knew him
Under an indictment for embezzlement, it is necessary that the Commonwealth should prove: (1) That the accused was an officer, agent, clerk, or servant of a bank or corporation; (2) that as such officer, agent, clerk, or servant, and in the course of his employment, he received money or property of the bank or corporation; and (3) that he embezzled or fraudulently converted to his own use the money or property so received. If the accused was the agent of the Consumers’ Distilling Company, a corporation, and as such agent, in the course of his employment, or within the scope of his duties, he received or collected from Staggenburg money due the company and failed to pay it over, the crime was complete. It was not necessary to introduce other evidence to show a fraudulent intent upon his part to convert it to his own use. That he so intended might be reasonably inferred from the other facts proved. The case for the Commonwealth was made out by the testimony of Staggenburg and the president of the company, and if no evidence had been introduced for the defense a judgment of conviction might have followed; and under the circumstances it would have been not only unnecessary, but highly prejudicial, to admit evidence of other distinct embezzlements from other persons. But, as the accused denied that he had secured any money from Staggenburg, it was, as we have endeavored to show, competent to admit other evidence to establish his identity although this evidence developed the offenses committed in connection with Hennessy, Dennis, Sidler, and Schutte. The peculiar-defense interposed by the accused rendered necessary
The exceptions to the general rule against the admissibility of evidence of other and distinct offenses are in a general way stated as follows in Underhill’s work on Criminal Evidence, at page 107: “ (1) If several similar criminal acts committed by the person on trial are so connected with respect to time and locality that they form an inseparable transaction, and a complete account of the offense charged in the indictment cannot be given without detailing the. particulars of such other acts, evidence of any or all of the component parts thereof is admissible-'to prove the whole general plan. (2) When the commission of the act charged in the indictment is practically admitted by the accused, who seeks to avoid criminal responsibility therefor by relying on a lack of intent or want of guilty knowledge, evidence of the commission by him of similar independent offenses before or after that upon which he is being tried, and having no apparent connection therewith, is admissible? to prove such intent or knowledge. (3) If the facts, and circumstances tend to show that the person committed an independent dissimilar crime to enable' him to perpetrate or to conceal the offense, for which he is
The authorities also agree that evidence of independent crimes is more particularly admissible when the charge under investigation is uttering forged paper, counterfeiting, receiving stolen property, and embezzlement; the reason for this being that the defense of mistake or ignorance or lack of guilty knowledge is more frequently interposed as a defense by the accused in cases of this character than in prosecutions for other offenses. Hence it is well settled! by the authorities before cited that in prosecutions x‘or embezzlement, when the defense is that the accused did not intend to commit the embezzlement, or that the act alleged to constitute the crime was the result of accident, mistake, or oversight, evidence of other embezzlements is admitted for the purpose of showing an evil intent and a guilty knowledge in the commission of the crime under investigation. But in the. case before us, as there was no attempt to rely upon a defense of this character, evidence of other acts of embezzlement by the accused were not necessary to establish his guilty knowledge, evil intent, or bad motive, nor were they so inseparably connected with* the Staggenburg transaction as to be a part of it. The only issue in the. ease was whether or not the accused had sold whisky to and collected money from Staggenburg. He said he did neither. If his identity had not been a question in the case, we are unable to perceive upon what theory evidence that he collected money from other persons and failed to pay it. over would be relevant under a prosecution for embezzling money collected from Staggenburg, any more than evidence of other offenses would be relevant in prosecutions for larceny, or burglary, or arson, where-
Another objection is that it was not shown by competent evidence that the Consumers’ Distilling Company was an incorporated concern. It is argued that in cases of this character it is necessary that the original articles of incorporation, or a copy of the record showing the incorporation, should be produced. Un
On the trial appellant introduced a witness for the purpose of proving by him that he was qualified as an expert in the examination of handwritings, and that a letter purporting to have been written by Bradford Morse to the company was in the same handwriting as the receipts Staggenburg and others testified were given them by the accused. The trial judge refused to admit this evidence, and this ruling is complained of. The reason for the ruling does not appear in the record; but we assume it was because it was not shown- that the letter purporting to have been-written by Bradford Morse was in fact written by him, and that-the statute in relation to disputed handwriting was not complied with. Looking at the matter from this standpoint, the ruling was correct. If writings admittedly made by Bradford Morse had been offered or introduced on the trial, it would have
It is further urged that, as agents of the company were allowed to collect and retain commissions, appellant could not be guilty of embezzlement, because he had the right to collect a part of what he retained, and, having the right to collect a part thereof, was not guilty of the statutory offense of embezzlement in collecting and retaining the whole of what he collected, although he might have converted the same to his own use. This precise question was settled adversely to the contention of the appellant in Comth. v. Jacobs, 126 Ky. 536, 104 S. W. 345, 31 Ky. Law Rep. 921. In that case Jacobs was employed by the Western & Southern Life Insurance Company to solicit insurance and collect premiums. His contract with the company provided that he should receive as a salary 15 per cent, of what was actually collected each week and paid to the company. He collected a number of policy holders money which he failed to pay over. The trial court was of the opinion that, as Jacobs was entitled to 15 per cent, of the money, he was not guilty of embezzlement in retaining the whole of it; but this court, in reversing the judgment, said: “Although the defendant was entitled to 15 per cent, of the fund as his commission, he held the remaining 85 per cent, as the agent of the company;
The instructions are also complained of, but they are not open to criticism or objection. Although the indictment charged embezzlement of $59.95, a conviction might be had on proof of the embezzlement of a less sum; and the court properly so instructed the jury.
After a careful examination of this record, we have been unable to discover any error prejudicial to the substantial rights of the accused, and the judgment of the lower court is affirmed.
Dissenting Opinion
(dissenting). In this case the circuit court allowed the Commonwealth to prove other acts of embezzlement committed at about the same time as the prinpical offense and under the same agency, charging the jury that this proof was only to be considered by them on the question of the defendant’s guilty intent; and it is held by this court that in so doing he committed an error. The ruling of the circuit court is in accord with the authorities. In a notn to Calkins v. State, 98 Am. Dec. 163, the rule is thus stated: “Evidence of other acts of embezzlement committed at about the same time with the principal offense is admissible to show guilty intent; but such evidence can have no further legitimate effect, and must be confined by the court within its proper scope by means of appropriate instructions, and a failure so to do would be ground for a new trial.” This statement of the rule is sustained by numerous decisions
The court admits that the evidence is competent, but in substance holds that it should be introduced in rebuttal, and then only where the defense is that there was no fraudulent intent. There are two objections to this ruling. The first is that the law is not so written. The administration of the law is uncertain enough at best. The circuit court's must be governed by the rules of law as given in the recognized text
I concur in the affirmance of the judgment, but I do not concur in so much of the opinion as holds that the circuit court erred in admitting the evidence referred to in chief.