138 Ky. 1 | Ky. Ct. App. | 1910
Lead Opinion
Opinion of the Court by
Reversing.
The appellant was convicted in the court below of the crime of embezzlement, and his punishment fixed at confinement in the penitentiary for a term of six years, under an indictment found by the grand jury of McCracken county. It appears from the indictment that the moneys, aggregating $750, he was charged to have embezzled, belonged to the state, and were received by him as clerk of the McCracken county court from various persons owing them; that the sums thus received by appellant consisted of delinquent taxes, and taxes on mortgages, deeds and licenses, which the laws of the state made it his duty
Appellant’s first contention is that the indictment is fatally defective, and that the trial court erred in overruling his demurrer to it. Embezzlement is a statutory crime and the indictment against appellant was returned under section 1205, Ky. St. (Bussell’s St. sec. 3373), which provides: “If any person having the custody, control or distinct possession of any money, bank notes, county, city or town bonds, or Kentucky state bonds, or United States bonds, or treasury notes, legal tender notes, promissory notes, property, effects or other movable thing of value belonging to or for the use of the state, or of any county or district of a county, or of any municipal corporation, and under any trust or duty to keep, return, deliver, cancel, destroy, or specifically apply the same or any part thereof, shall, in violation of such trust or duty, willfully misapply, misappropriate, conceal, use, loan or otherwise wrongfully and fraudulently dispose of such money, bank notes, county, city or town bonds, state bonds, United States bonds or treasury notes, legal tender notes, promissory notes, property, effects or other movable thing of value or any part thereof, for his own purposes or use of another, with intent to deprive the owner or authority of the same, or of any part thereof, for the benefit of the wrongdoer or of any other person, such person so offending shall be confined in the penitentiary not. less than one nor more than ten years.”
The essential facts constituting the crime defined by the section, supra, are charged in the indictment,
Appellant also complains that the trial court overruled his motion to compel the filing by the commonwealth’s attorney of a bill of particulars, giving the names of the persons from whom appellant collected the moneys he was charged to have embezzled; the amount collected of each and on what account. It would perhaps have been well for. the court to have sustained the motion, and we advise that the common
We feel constrained, however, to sustain appellant’s third contention that the trial court erred in refusing him a continuance of his case. We rest this conclusion upon two grounds, either of which entitled him to the continuance: (1) That appellant was forced into trial within a few days of his discharge from the Western Kentucky Lunatic Asylum, and
It will be observed that in the, section as first enacted the word “criminal” is not used with respect to any term of court therein provided for Mc-Cracken county, but that in the same section as amended it appears three times, and in each instance preceding the word “term”; the terms in connection with which it is used being the shorter terms required to be held in McCracken county. While the word “civil” did not appear in the section as first enacted, it is found in the section as amended, wherein it is made to precede each of the terms of longer duration, which it provides shall be held in the county.
The words “criminal term” can have but one meaning; they apply to a term of the circuit court at which indictments are found and returned by a grand jury, persons are tried for crimes and misdemeanors, and other business relating solely to the administration of the criminal and penal laws is transacted.
The meaning of the word “civil,” as applied to a term of court, is equally well understood. A “civil term” of the circuit court is one at which civil business is disposed of, and controversies affecting the rights of persons and property, whether cognizable
It appears that at the criminal term of the Mc-Cracken circuit court held in September, 1909, appellant’s case was continued. This to him meant, and such was its legal effect, that his case would not again be called for trial until the next criminal term of the court which would begin on the first Monday in January, 1910, and the court had no right, and was without jurisdiction, to try appellant at the next civil term of the court which began in October, 1909. If, as claimed in the brief of appellant’s counsel, appellant’s trial affords the only instance of the trial of a criminal case at a civil term of the McCracken circuit court since the division of the court ¡into
We are further of opinion that appellant’s complaint of the exclusion by the court from the consideration of the jury of the record containing the writ, judgment, and other proceedings in the inquisition of lunacy offered in evidence by appellant to show that he had properly been found and adjudged of unsound mind shortly before his trial is well founded, for the exclusion of this evidence was error.
It appears that the inquest was held at the same term of the court at which’ appellant’s trial under the indictment occurred, and that from the time of the inquest until within a few days of his trial he was confined in the lunatic asylum at Hopkinsville; Ms return to the custody of the jailer of McCracken county having been ordered by the court upon a written statement from the superintendent of the asylum that his mind had been restored. His prin-' cipal defense was that he was of unsound mind at the time of committing the crime charged in the indictment, and much of the evidence introduced in his behalf tended to show that throughout his term of office as county clerk, and down to the time of the trial, he was greatly addicted to the use of morphine or other drugs by which his mind was much impaired, if not destroyed. Thus it will be seen that the inquest of lunacy furnished an important link in the
It was held in the case of Montgomery v. Com., 88 Ky. 509, 11 S. W. 475, that: “Evidence of insanity both before and after the criminal act may be given to the jury for the purpose of enabling’ them to determine whether or not the same conditions of mind existed at the time the act was committed; but no legal presumption arises from the proof of previous, or after, insanity that the person was insane at the time he committed the criminal act; but the jury may draw such inferences of fact from these conditions as they may deem proper.” Moore v. Com., 92 Ky. 630, 18 S. W. 833.
In Clark’s Ex’r v. Trail’s Adm’rs, 1 Metc. 35, it was held that an inquest of lunacy, although conclusive evidence of the condition of mind of the party at the date of the inquest, is only prima facie evidence of his condition at any subsequent period; being a mere presumption it may be repelled by oral testimony.
In Wigmore on Evidence, section 1671, it is said: “There is not, therefore, and never has been, any doubt as to the admissibility of an ■ inquisition of lunacy, in any litigation whatever, to prove the person’s mental condition at {he time. The only controversy has been whether it is conclusive, i. e., whether it is to be regarded as a judicial proceeding and a judgment in rem, binding upon all persons whatsoever. There also arises for it the question whether the person’s mental condition at the time of the inquisition is evidence of his condition at the time in issue; but this is merely a question of the relevancy of the fact evidenced by the inquisition and not of the admissibility of the inquisition.” Sec
Appellant also objects to the instructions given by the court, but the objection is, we think, without merit. We are of opinion, however, that so much of instruction No. 4 as was not embraced in instruction No. 3 should have been included in instruction No. 3, and this the court will do upon a retrial of the case.
For the reasons indicated, the judgment is reversed and case remanded for a new trial consistent with the opinion.
Rehearing
Extended Opinion by
on Petition eor Rehearing.
In the opinion it is held that as the Legislature by the' act of 1908, now section 965 of the Kentucky Statutes, provided that the circuit court of Mc-Cracken county should hold three civil terms and three criminal terms during each year, that it is not competent to try a criminal case in McCracken county at a term designated as a civil term or a civil ease at a ierm prescribed in the act for the trial of criminal eases.
Upon a reconsideration of so much of the opinion as relates to this point, we have concluded that the act of 1908, in so far as it undertakes to divide the terms of the circuit court to be held in McCracken county into civil terms and criminal terms, is in violation of section 59, subsec. 1, Const. This subsection, in connection with the preceding clause, reads: ‘ ‘ The General Assembly shall not pass local or special acts concerning any of the following subjects or for any
So much of the opinion as is in conflict with the views herein expressed is withdrawn, and the petition for rehearing is overruled.