Commonwealth v. Barney

• Citation: 115 Ky. 475,74 S.W. 181
• Parties: COMMONWEALTH v. BARNEY.
• Decision Date: 05 May 1903
• Court: Court of Appeals of Kentucky

74 S.W. 181

115 Ky. 475

COMMONWEALTH v. BARNEY.

Court of Appeals of Kentucky.

May 5, 1903

Appeal from Circuit Court, Jefferson County, Criminal Division.

"To be officially reported."

Charles Barney was indicted for fraudulently converting the property of another without the owner's consent. A demurrer to the indictment was sustained, and the commonwealth appeals. Affirmed.

C. J Pratt and M. R. Todd, for the Commonwealth. Kohn, Baird &amp Spindle and Bingham & Davis, for appellee.

O'REAR J.

This appeal involves the constitutionality of the act of March 21 1902 (Laws 1902, p. 151, c. 66), fixing a penalty for one's fraudulently converting or disposing of the property of another without the owner's consent. It also involves the sufficiency of an indictment drawn under the act.

The proposition is argued that there is a variance between the title and the body of the act; that the title does not express the subject of the statute, and is therefore violative of section 51 of the Constitution, which provides that "no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title."

The act under consideration is as follows: "An act to make it unlawful for a person to fraudulently dispose of the property of another, and to provide a punishment therefor.

"Be it enacted by the General Assembly of the Commonwealth of Kentucky:

"Section 1. That any person who shall sell, dispose of or convert to his or her own use or the use of another, any money, property or other thing of value without the consent of the owner thereof, shall be punished by confinement in the penitentiary for not less than one nor more than five years; if the money, property, or other thing of value so sold, disposed of or converted to his or her own use be of the value of twenty dollars or more; or be confined in the county jail for not less than one nor more than twelve months if the value be less than twenty dollars."

Laws 1902, p. 151, c. 66.

It will be observed that the word "fraudulently" is used in the title, but nowhere in the enacting clause of the bill is reference made to intent or purpose of the wrongdoer. From this it is argued by appellee that the Legislature has attempted to create the offense, and fix a penalty for one's disposing of another's property, or converting it, without the owner's consent; that such an act is far beyond the scope of the title, which restricts within much narrower bounds the class of acts proscribed by the bill. The title and the body of the statute not being in accord, it is argued that the act is therefore unconstitutional. The contention of the Attorney General is that the body of the act alone controls, that it is fairly stated in the title, and that it was within the power of the Legislature to make the simple transfer or conversion of another's property by one not the owner, without the latter's consent, an unlawful act, and to provide a penalty.

Formerly the titles of legislative acts were not regarded as any part of them. Atty. Gen. v. Weymouth, 1 Amb. 20; Hadden v. The Collector, 5 Wall. 107, 18 L.Ed. 518. At that time acts of Parliament were given their title by the Speaker or by the clerk. The courts then disregarded the title, as affording no index of the intention of the lawmaking body, for the very good reason that that body had nothing to do with the selection of the title. To prevent certain abuses of legislation by the use of misleading titles, many of the states now have constitutional provisions identical or quite similar to ours. Section 51. So that the matter of selecting an expressive and accurate title is committed directly to the Legislature, and its being fairly expressive of the context of the bill is an imperative condition to the validity of the act. It is essentially a part of the act, not only because it has been selected and adopted by the Legislature as one of the tests of their meaning as expressed in the bill, but because the Constitution has made it a part, and the controlling part, of the law to which it applies. It is therefore not only useful, in affording a fair index of the legislative intent in case of ambiguity in the context, but it must be read in connection with the remainder of the act--as a part of it--in determining what is the law. If the enacting clause of the act goes beyond the title, only that part that is in harmony with it, and that is fairly embraced by it, can stand. Cooley's Constitutional Limitations, 170-181; Endlich, Interpretation of Statutes, § 59; Southerland, Statutory Construction,§ 210. The constitutionality of the act must be sustained, if possible, and therefore, in cases of doubtful terms or meaning, that construction will be applied which upholds the act, if such can be done without doing violence to the manifest legislative purpose. This is an additional reason why the language, and the whole of it, must be read in connection, including the title of the bill.

That the enacting clause of this statute meant to deal only with fraudulent or wicked conversions of another's property without his consent, we find abundant grounds to sustain, even outside of the expression in the title. To apply the terms of the act literally would be so far-reaching that quite frequent injustice and absurdity would result. This compels the rejection of that construction. It is argued for the commonwealth that motive or intent, not being provided for in the act, are not essential; that many acts are made unlawful by legislative enactment without regard to the actor's intent. But that statement must be considered subject to its qualifications. Bishop's New Criminal Law, § 291b. While in civil actions the quo animo with which a thing is done may sometimes be immaterial, we apprehend that generally in legal, as always in moral, contemplation, crime proceeds alone from a wicked mind. For this reason acts of lunatics, idiots, and young children, and of those acting under duress or under mistake of fact, are held to be not criminal. Bishop's New Crim. Law, §§ 287-290. Although some acts are made unlawful apparently without regard to the intent of the perpetrator, a construction that would make a man guilty regardless of the question of intent is not to be preferred. Bradley v. People, 8 Colo. 599, 9 P. 783. A few illustrations taken from everyday occurrences will serve to further prove that the Legislature had in mind a fraudulent act as the one constituting the evil to be remedied by the statute under examination. A sheriff or tax collector who distrains the goods of a delinquent debtor or taxpayer "disposes of the goods of another without the consent of the owner," in fact. One who carelessly and without criminal intent commingles the property of another with his own, and then sells it, would be converting or disposing of the property of another without his consent, and would be civilly liable to the owner therefor. Reed v. King (Ky.) 12 S.W. 772. A common carrier who wrongfully withholds goods delivered to him for transportation is liable to the owner as for a conversion, without regard to his good faith in acting upon the grounds of his belief. L. & N. R. Co. v. Lawson, 88 Ky. 496, 11 S.W. 511. The plaintiff, in directing the service of an execution or attachment, and the officer handling it, who levies the writ upon the goods of a stranger to the writ, or levies upon an excessive quantity, however honest in belief is their mistake are liable to the true owner as for a conversion. Hale v. Ames, 2 T. B. Mon. 143, 15 Am. Dec. 150; Hill v. Ragland (Ky.) 70 S.W. 634; Arnold v. Fowler, 94 Md. 497, 51 A. 299, 89 Am. St. Rep. 444. Without further multiplying instances, we may add that any conversion that would support an action of trover or detinue would, under the strict construction contended for, make a crime of many an act innocent enough, maybe, in intent; for, says Bidlow in Leading Cases on Tort, 428, "It may be laid down, as a general principle, that the assertion of a title to, or an act of dominion over, personal property, inconsistent with the right of the owner, is a conversion." We therefore conclude that the Legislature intended to include in the acts inhibited those only that were intentionally fraudulent. It then follows that the act, thus read, is not violative of section 51 of the Constitution.

The draftsman of the indictment in this case proceeded upon the theory above outlined and sustained. The indictment reads "The grand jurors of the county of Jefferson, in the name and by the authority of the commonwealth of Kentucky, accuse Charles Barney of the crime of unlawfully, fraudulently, and feloniously converting to his own use money of value, the property of another, without the consent of the owner thereof, committed in manner and form as follows, to wit: The said Charles Barney, in the said county of Jefferson, on the -- day of July, 1902, and before the finding of this indictment, unlawfully, fraudulently, feloniously, and without the consent of Emma Black, did convert to his own use forty-two dollars, in good and lawful money of the United States, of the value of forty-two dollars, a further description of which is to the grand jurors unknown, the personal property of said Emma Black, with the fraudulent and felonious intent then and there to permanently deprive the said Emma Black of her property therein, contrary to the form of the statute," etc. The circuit court sustained a...