Standard Oil Co. v. Commonwealth, 122 Ky. 440

Standard Oil Co. v. Commonwealth

122 Ky. 440 | Ky. Ct. App. | 1906

OPINION op the Court by

Judge Paynter

— Affirming.

The indictment was returned in court November 29, 1904, -and charged the appellant with the offense of unlawfully selling petroleum, lubricating, and other oils by transporting and retailing the same by means of a wagon without a license so to do. The oil was alleged to have been sold to. L. J. Bowen on May 30, 1904. The trial resulted in a conviction and the imposition of a fine of $250.

A reversal is sought because the Commonwealth failed to prove that the appellant was a corporation. It is averred in the indictment that it is a corporation. Such an averment was essential to the validity of the indictment. Roberson’s Criminal Law, vol. 2, 1036. If the Standard Oil Company was a partnership, it would have been necessary to proceed against the members comprising the firm, as no valid judgment could be rendered against the name under' which they conducted the business. If it is necessary to allege that a defendant is a corporation, then it is necessary that there should be introduced some evidence tending to show that it is. A jilea of not guilty puts in issue the question as to whether it *443was a corporation. When there is no admission that it is a corporation, and the plea of not guilty is equivalent to a denial that it is, its charter may he shown to establish that it is a corporation. However, it is not necessary to offer in evidence its articles of incorporation. Its de facto existence may he established by evidence tending to show that it acted and was accepted in the community as a corporation under the name alleged. In fact, any evidence tending to show it is a corporation is sufficient. Subsection 2, section 682, Bishop’s Criminal Procedure. It may be shown that the defendant is a corporation by a certified copy of the statement Which it may file in the office of the Secretary of State by virtue of section 571, Ky Stats. 1903, to designate an agent upon whom process may be served in a suit against it. The Commonwealth produced sufficient evidence that the appellant is a corporation. The receipt which the appellant gave L. J. Bowen for the payment of the oil it sold him was introduced as evidence and it is therein recited that the Standard Oil Company is “incorporated.” The failure of the court to submit the question as to whether or not the appellant is a corporation was not a prejudicial error, as there was no contradiction of the evidence tending to show it is a corporation, and it was sufficient for that purpose.

The judgment is affirmed.