192 Ky. 318 | Ky. Ct. App. | 1921
Opinion of the Court by
— Affirming.
Appellant, Nelson Stringer, Jr.,, was in the employ of the C. N. O. & T. P. R. R,.Co, in February, 1920, as car
(1) The indictment does not state two public offenses, although it contains averments which serve no useful, purpose in charging the crime for which Stringer was prosecuted. The indictment designates the crime committed by Stringer as “unlawfully and feloniously and forcibly breaking and entering a railroad car with intent to steal property of value therefrom.” This crime is covered by section 1163, Kentucky Statutes. After stating the crime against which the statute is leveled the indictment contains the following: “And stealing property therefrom, the said property so stolen being a lot of Camel cigarettes of value and of greater value than $20.00, and said property and car being the property of and iu the possession of the common carrier for transportation and not the property of the defendant,” which was wholly surplusage. The surplus averments are not sufficient to constitute a valid indictment under section 1201b for taking property from a box, barrel or other package in the possession of a common carrier with the intent and purpose of appropriating the same to the use and benefit of the taker. The indictment, while prolix, is not duplicitous nor subject to demurrer though appellant might 'by timely motion have caused the surplus words to have been stricken therefrom. Commonwealth v. L. & N. R. R. Co., 191 Ky. 634.
It is earnestly insisted that the trial court should have sustained the appellant’s motion to instruct the jury to find him not guilty. This insistence is based upon the assumed absence of evidence of a breaking and entering of the railroad ear. No witness testifies that
The following circumstances: The B. & 0. car of cigarettes arrived sealed in the Danville railroad yards where appellant worked and had access to the car; shortly after the arrival of the car and while appellant was in the yards the car was broken open and the cigarettes taken; immediately appellant appears, at the home of
Complaint is made by appellant that the trial court allowed a witness for the Commonwealth to testify concerning certain tallies and entries on books in the railroad offices of Kansas City, Missouri, relating to the shipment of the cigarettes involved when it is admitted the witness did not himself make the entries or tallies, but the same were made by another under the direction and supervision of such witness, without sufficiently accounting for the absence of the person who actually made the entries. If the person who made entries be dead or beyond the jurisdiction of the court, and this fact appears, the record may be proven by the one in charge of them by showing that the records were made in the ordinary course of business, contemporaneously with its transaction, by an authorized agent or servant of the person carrying on the business. It is sometimes said that such evidence is only receivable when the person who made the record is either dead or has absconded. The evidence in this case does not indicate that the person who made the tally and entry is dead nor that he has absconded in the ordinary meaning of that term, but only that said person had left the employment of the railroad company before the trial and his whereabouts was unknown to the agent of the company who had the company’s records in court. The word “abscond” is too harsh and narrow a term to correctly define the person included in the exception to the rule. Undoubtedly the person in charge of the records of the office who can state that the entry was made in the regular course of business at the time of its transaction by an employe whose handwriting he knows can testify concerning such a record
A careful examination of the entire record discloses .no error prejudicial to the substantial rights of appellant and the judgment is affirmed.