Com. v. McGarvey

Decision Date28 April 1914
Citation158 Ky. 570,165 S.W. 973
CourtKentucky Court of Appeals

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Charles McGarvey was indicted for knowingly receiving stolen goods and, from a judgment on a directed verdict for accused, the Commonwealth appeals, and asks a certification of the law of the case. Judgment as stated.

R. G Williams, of Covington, Commonwealth's Atty., Jas Garnett, Atty. Gen., and O. S. Hogan, Asst. Atty. Gen., for the Commonwealth.

Jno. B. O'Neal, of Covington, for appellee.


Charles and Joseph McGarvey were jointly indicated by the grand jury of Kenton county for the crime of receiving stolen goods, knowing them to have been stolen. The indictment charged that the defendants received from one Charles Bettman, alias John Shannon, and Albert Frank Essen 17 pairs of ladies oxford shoes, the property of the Krippendorf-Dittman Company of Cincinnati, Ohio, which had by said Shannon and Essen been stolen from the Southern freight depot. The defendants moved for a severance; the motion was sustained; and the commonwealth elected to try Charles McGarvey first. At the conclusion of the evidence for the commonwealth, on motion of defendant, the court first excluded from the jury all testimony with reference to goods found in the possession of the defendant other than the shoes, with the receiving of which he was charged in the indictment, and then directed a verdict for the defendant. The commonwealth appeals, and asks a certification of the law of the case.

The order dismissing the defendant does not state upon what grounds this action was taken by the lower court; but the motion for peremptory instruction made by defendant's counsel was based upon the following stated grounds, viz.: That there was a variance between the allegation of the indictment and the proof, in respect of the ownership of the stolen shoes; that the evidence of Essen, who stole the shoes and sold them to the defendant, and was therefore an accomplice, was not corroborated; that the commonwealth failed to show that the defendant received the stolen shoes, or that he knew they were stolen.

1. As to the matter of a variance between the indictment and the proof in respect to the ownership of the stolen shoes, it was conclusively shown by evidence that the shoes in question were part of a shipment, consisting of two boxes of shoes, made by the Krippendorf-Dittman Company of Cincinnati to A. C. Link, at Hickory, N. C., and that said shipment was delivered to the freight depot of the Cincinnati Southern Railroad in Cincinnati, from which one of said boxes was stolen by Shannon and Essen.

As to whether the shoes when stolen were the property of the shipper or of the consignee, the rule has been stated as follows: "Ordinarily a delivery of goods by the seller to a carrier is a delivery to the purchaser, but the delivery must be of goods of the proper quality and in the proper quantity." 35 Cyc. 193. "And, since a delivery to a carrier under proper conditions is a delivery to the buyer, such delivery is sufficient to transfer the property in the goods, subject to the shipper's right of stoppage in transit. The rule presupposes, however, that the delivery is complete; that the goods are of the kind and quality and in the quantities ordered; that they are shipped according to the directions given by the buyer; that they are consigned in the name of the buyer; or that the bill of lading is indorsed and delivered so as to confer on the consignee the right to receive the goods from the carrier without reservation." 35 Cyc. 316.

Having these principles in mind, it is impossible to say, from the evidence in the record, whether the property in the shoes had passed from the Krippendorf-Dittman Company to the consignee, Link, or not. But, for the purpose of certifying the law of the case, it will be assumed that the property in the shoes had passed from shipper to consignee; and that therefore there was a variance between the allegation of the indictment and the evidence, in respect of the matter of the ownership of the stolen shoes.

2. It is contended by the commonwealth that, in an indictment for this crime, a misdescription of ownership is not material. Section 128 of the Criminal Code is as follows: "If an offense involve the commission of, or an attempt to commit an injury to person or property, or the taking of property, and be described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured or attempted to be injured, or as to the owner of the property taken or injured or attempted to be injured, is not material." This section has been held to apply to the following crimes: Housebreaking (Johnson v. Commonwealth, 87 Ky. 189, 7 S.W. 927, 10 Ky. Law Rep. 100); burglary (Olive v. Commonwealth, 5 Bush, 376); obtaining money under false pretenses (Hennessy v. Commonwealth, 88 Ky. 301, 11 S.W. 13, 10 Ky. Law Rep. 823); arson (Commonwealth v. Napier, 84 S.W. 536, 27 Ky. Law Rep. 131, and Overstreet v. Commonwealth, 147 Ky. 471, 144 S.W. 751); robbery (Bibb v. Commonwealth, 112 S.W. 401, 33 Ky. Law Rep. 726).

And the court is of the opinion that it also applies to indictments for the crime of receiving stolen goods, knowing them to have been stolen. This section was intended to and should especially be made to apply to just such cases as this, where it is practically impossible to tell whether the property in goods in the possession of a common carrier has passed to the consignee thereof or still remains in the shipper.

Under this section of the Code, this court has uniformly held that where the act within this section is particularly and sufficiently described so that it may be identified as the one which the accused is called upon to answer, whether the owner of the property taken or...

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57 cases
  • Acree v. Commonwealth
    • United States
    • Supreme Court of Kentucky
    • March 25, 1932
    ...showing the identity of the defendant with, or his motive or guilty knowledge of, the crime charged in the indictment. Commonwealth v. McGarvey, 158 Ky. 570, 165 S.W. 973; Devoto v. Com., 3 Metc. 417; Commonwealth v. Grief, 27 S.W. 814, 16 Ky. Law Rep. 198; Sneed v. Com., 236 Ky. 838, 34 S.......
  • Fox v. Commonwealth
    • United States
    • Supreme Court of Kentucky
    • March 24, 1933
    ...testimony of other witnesses tends to connect the defendant with the offense, the accomplice has been corroborated. Commonwealth v. McGarvey, 158 Ky. 570, 165 S.W. 973; Shields v. Commonwealth, 203 Ky. 118, 261 S.W. 865; Mulligan v. Commonwealth, 202 Ky. 841, 261 S. W. 616; Privett v. Commo......
  • Runyon v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • June 1, 1926
    ... ... alleged and proven that the injured party is either a bank or ... a corporation. Morse v. Com., 129 Ky. 310, 111 S.W ... 714, 33 Ky. Law Rep. 831, 894. True, we have held that a ... railroad company will be presumed to be a corporation ( ... Com., 13 Bush, ... 337; Jackson v. Com., 19 Ky. Law Rep. 1197; Com ... v. Vineyard, 82 S.W. 289, 26 Ky. Law Rep. 543; Com ... v. McGarvey, 158 Ky. 570, 165 S.W. 973; Bibb v ... Com., 112 S.W. 401, 33 Ky. Law Rep. 726; Com. v ... Vaughn, 140 Ky. 559, 131 S.W. 396; Robinson v ... ...
  • Com. v. Smith
    • United States
    • Appeals Court of Massachusetts
    • March 24, 1975
    ...201 Ind. 572, 586--587, 169 N.E. 40 (1929); State v. Renslow, 211 Iowa 642, 643--644, 230 N.W. 316 (1930); Commonwealth v. McGarvey, 158 Ky. 570, 574--575, 165 S.W. 973 (1914); State v. Keays, 97 Mont. 404, 414--416, 34 P.2d 855 (1934); Kluting v. State, 90 Tex.Cr.R. 44, 49--50, 232 S.W. 30......
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