Bailey v. Commonwealth

Decision Date12 November 1908
Citation113 S.W. 140,130 Ky. 301
PartiesBAILEY v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Hopkins County.

"To be officially reported."

I Bailey, Sr., was convicted of embezzlement, and he appeals. Reversed and remanded.

Jonson & Jennings and Waddill & Dempsey, for appellant.

James Breathitt, Atty. Gen., Theo. B. Blakey, and Ruby Laffoon, for the Commonwealth.

O'REAR C.J.

This appeal is prosecuted from a conviction; the charge being embezzlement.

Appellant was, and for many years had been, treasurer, secretary, and general manager of the Reinecke Coal Company, a corporation whose place of business was at Madisonville, Ky. The indictment, following substantially the Kentucky statute against the crime of embezzlement, charged that appellant while such officer of the corporation named, and being intrusted with its money, chattels, and effects, had embezzled, and unlawfully and fraudulently converted to his own use, with intent to deprive that corporation of same, its money, effects, and property, a more particular description of which was unknown to the grand jury, to the amount of $500. A demurrer to the indictment was overruled. Appellant complains that the indictment was too vague and uncertain to apprise him of the particular offense charged and to put him on notice of what the commonwealth would attempt at the trial to prove. While our Criminal Code of Practice requires the indictment to be direct and certain as to (1) the party charged, (2) the offense charged, (3) the county in which the offense was committed, and (4) the particular circumstances of the offense charged, if they be necessary to constitute a complete offense (section 124, Cr. Code Prac.), yet by section 135, Id., it is made sufficient to allege the larceny or embezzlement of money, without specifying the coin, or number, denomination, or kind thereof. Jones v. Commonwealth, 13 Bush, 356; Travis v. Commonwealth, 96 Ky. 77, 27 S.W. 863. An indictment worded as this one is in its main features was held good in Schlitbaum v. Commonwealth, 80 S.W. 784, 26 Ky. Law Rep. 54. If an indictment contains sufficient to stand the test of a demurrer as to all facts constituting a complete offense, other charges which are not sufficiently pleaded to stand alone may be disregarded as surplusage. So that the charge in this indictment as to effects and property of the corporation alleged to have been embezzled, because not specified or described so as to satisfy the requirements of the Code (section 124, supra), that the indictment shall be definite and certain as to the particular circumstances of the offense charged, may be disregarded as surplusage or immaterial matter. Likewise the allegation in the indictment that appellant fraudulently converted the money and property "to his own use and to the use of other persons" should be limited to an inquiry as to the alleged conversion to his own use. An indictment for embezzlement, charging a fraudulent conversion by the officer or agent of a corporation of its property to the use of others, which may be had under the statute (section 1202, Ky. St. 1903), must name the persons to whose use the property was so converted, or otherwise describe them, if unknown to the grand jury, so that they may be identified. Hence the latter clause of the last quotation may also be regarded as surplusage. It follows that the remainder of the indictment, charging appellant with having fraudulently, while an officer or agent of the corporation, having its money intrusted to his custody, converted $500 of its money to his own use, intending to deprive the owner of the same, is sufficiently definite to meet the requirements of good pleading.

It sometimes happens from the nature of the case, of which the one in hand may be a fair example, that even a good indictment may fail to particularize the acts relied upon as constituting the offense, so as to fully and fairly put the accused upon notice as to what will be attempted to be proved against him on the trial, so that he may be prepared to meet it with evidence. There is no limitation against such prosecutions for felony in this state. Hence time is not a necessary element in the declaration, further than that the offense was committed before the finding of the indictment. Appellant was treasurer, secretary, and general manager of the corporation for perhaps 20 years. In that time many thousands of dollars of the corporation's money passed through his hands. A general charge, such as is contained in this indictment, might afford him little or no clue as to the particular transaction which would be asserted against him in the evidence as criminal. Fair play, not to say a regard for that scrupulous care which the state ought to take, and which it does take, to afford one accused of a base crime...

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5 cases
  • State v. O'Neil
    • United States
    • Idaho Supreme Court
    • September 17, 1913
    ... ... 301; Welhousen v ... State, 30 Tex. App. 623, 18 S.W. 300; People v ... Hurley, 126 Cal. 351, 58 P. 814; Raymond v ... Commonwealth, 123 Ky. 368, 96 S.W. 515; People v ... Dixon, 118 A.D. 593, 103 N.Y.S. 186; State v ... McNamara, 212 Mo. 150, 110 S.W. 1067; Brown v ... particular report for the making of which he is to be tried, ... then he has the right to demand of the state a bill of ... particulars. ( Bailey v. Commonwealth, 130 Ky. 301, ... 113 S.W. 140; State v. Rathbone, 8 Idaho 161, 67 P. 186.) ... If the ... court resorted to conjecture ... ...
  • United States v. Overbay, CR-2-77-14.
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • August 29, 1977
    ...when the evidence failed to show that she converted any of the proceeds of the checks involved to her own use. Bailey v. Commonwealth (1908), 130 Ky. 301, 113 S.W. 140, see also 17 A.L.R. 922-923 (relating to a charge of embezzlement). In a prosecution it was alleged in an indictment that t......
  • Stephens v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • September 14, 1920
    ...425, 22 Ky. Law Rep. 512; Todd v. Com., 93 S.W. 631, 29 Ky. Law Rep. 473; Stone v. Com., 67 S.W. 841, 24 Ky. Law Rep. 10; Bailey v. Com., 130 Ky. 301, 113 S.W. 140; Clary Com., supra; Jones v. Com., 13 Bush, 356; Com. v. Clifford, 96 Ky. 4, 27 S.W. 811, 16 Ky. Law Rep. 184; Schlitbaum v. Co......
  • Clary v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • February 19, 1915
    ... ... thereof." ...          This is ... the only exception to the rule requiring a description of the ... property alleged to have been embezzled ...          The ... case of Commonwealth v. Barney, 115 Ky. 475, 74 S.W ... 181, 24 Ky. Law Rep. 2352, and the case of Bailey v ... Commonwealth, 130 Ky. 305, 113 S.W. 140, and the case of ... Travis v. Commonwealth, 96 Ky. 77, 27 S.W. 863, 16 ... Ky. Law Rep. 253, and of Schlitbaum v. Commonwealth, ... 80 S.W. 784, 26 Ky. Law Rep. 52, are not cases in point upon ... the question involved in this case. In these ... ...
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