Bell v. Commonwealth

• Decision Date: 18 January 1924
• Citation: 202 Ky. 163,259 S.W. 29
• Parties: BELL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

259 S.W. 29

202 Ky. 163

BELL v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 18, 1924

Rehearing Denied March 28, 1924.

Appeal from Circuit Court, Bourbon County.

C. L Bell was convicted of embezzlement, and appeals. Affirmed.

L. G Campbell and B. J. Bethurum, both of Lexington, and R. L Pope, of Knoxville, Tenn., for appellant.

Thos. McGregor, Atty. Gen., for the Commonwealth.

CLARKE J.

Appellant complains of a judgment convicting him of embezzlement and fixing his punishment at three years' confinement in the state penitentiary.

1. His first contention is that the court erred in overruling his demurrer to the indictment, which is said to be fatally defective, in that it fails (a) adequately to describe the property converted, or (b) that it was converted with the intent to defraud the owner of same.

(a) The property is described simply as $198.90," and it is insisted that without an averment it was lawful money of the realm or of the United States or some such expression, the description is not sufficiently definite and certain to comply with the provisions of sections 122 and 124 of the Criminal Code, relating to all indictments. This however is not true, since by section 135 of the Criminal Code it is expressly provided that:

"In an indictment for the larceny or embezzlement of money, or United States currency, or bank notes, it is sufficient to allege the larceny or embezzlement of the same without specifying the coin, number, denomination or kind thereof."

In construing this section in connection with sections 122 and 124, we have denied the same contention that appellant is now making in a number of cases. Hayes v. Commonwealth, 173 Ky. 188, 190 S.W. 700; Cosby v. Commonwealth, 186 Ky. 503, 217 S.W. 357; Stephens v. Commonwealth, 188 Ky. 824, 224 S.W. 364.

(b) We uniformly have held that an evil intent is a necessary element of the crime of embezzlement defined in section 1202 of Kentucky Statutes, and, as at common law must be charged in the indictment. Commonwealth v. Barney, 115 Ky. 475, 74 S.W. 181. 24 Ky. Law Rep. 2352; Farmer v. Commonwealth, 91 S.W. 1129, 28 Ky. Law Rep. 1369; Morse v. Commonwealth, 129 Ky. 294, 111 S.W. 714; Commonwealth v. Smith & McGuiar, 127 Ky. 171, 105 S.W. 397, 32 Ky. Law Rep. 35; 20 C.J. 433; Bishop's New Criminal Law, § 345.

But the indictment here accuses appellant--

"of the crime of embezzlement committed as follows, viz.: The said C. L. Bell in the said county of Bourbon, on the 21st day of June, A. D. 1923, and before the finding of this indictment, did, he being then and there the duly elected and acting president of the Bourbon Oil & Development Company, a corporation, embezzle and fraudulently convert to his own use $198.90, the property of the said corporation, which said money had been placed in the care of the defendant and under his management as the president of said corporation, against the peace and dignity of the commonwealth of Kentucky."

How it can be argued that the averment, appellant "fraudulently converted to his own use," is not an allegation the conversion was made with an intent to defraud, is not apparent. The indictment not only charges the offense in almost the precise language of the statute, but, giving any meaning whatever to the word "fraudulently," clearly charges an intent to defraud; hence the court did not err in overruling the demurrer thereto.

2. The next insistence is that the appellant's motion for a peremptory instruction was improperly overruled. It was proven by the commonwealth, and admitted by the defendant, that he cashed and used the proceeds of a check for $198.90, which, as president of his company, he had issued but not delivered to the Muncie Oil Engine Company. It is the contention of the appellant that the funds represented by the check became the property of the payee when the check was executed, and, when converted to his own use by appellant, were the funds of the Muncie Company and not of the Bourbon Oil & Development Company, as charged in the indictment.

In support of this contention we are referred to several cases from this court in which it was held that a check is an absolute appropriation of so much of the funds in the hands of the bank to the credit of the drawer as is called for by the instrument, and that, after notice to the bank, the money becomes the absolute property of the person to whom the check was drawn, and the drawer loses all interest in the fund to the extent of the check. Commonwealth v. Ky. Distilleries & Warehouse Co., 132 Ky. 521, 116 S.W. 766, 21 L. R. A. (N. S.) 30, 136 Am. St. Rep. 186, 18 Ann. Cas. 1156, and cases there cited. But this is only true where, as in each of those cases, there has been a delivery of the check to the drawee, since a check until delivered is not "drawn" within the meaning of that term as employed in those cases.

As the check here had never been delivered to the payee, but was cashed, and the proceeds converted by appellant while in his possession as the president of the drawer for the purpose of delivery, we are of the opinion the funds converted were the funds of the latter and not the former. This contention is therefore without merit.

3. The court in the instructions given did not formally define the term "fraudulently convert," and as a consequence it is...