Commonwealth v. Brand

• Decision Date: 17 November 1915
• Citation: 166 Ky. 753,179 S.W. 844
• Parties: COMMONWEALTH v. BRAND.
• Court: Kentucky Court of Appeals

179 S.W. 844

166 Ky. 753

COMMONWEALTH v. BRAND.

Court of Appeals of Kentucky.

November 17, 1915

Appeal from Circuit Court, Graves County.

Prosecution of W. L. Brand by the Commonwealth for embezzlement. There was a failure by the jury to reach a verdict on account of the disagreement, and the Commonwealth appeals, as provided by Cr. Code Prac. §§ 335, 337. Opinion ordered certified to the circuit court.

H. J Moorman, of Mayfield, and Samuel H. Crossland, of Paducah for the Commonwealth.

Hester & Hester, of Mayfield, for appellee.

HURT J.

This is an appeal by the attorney for the commonwealth of Kentucky from decisions of the circuit court upon the admission and rejection of proof of facts offered to be given in evidence, and decisions upon the giving of instructions to the jury upon the trial of the appellee in the Graves circuit court, upon an indictment which charged him with the crime of embezzlement, as denounced by section 1205 of Ky. Statutes. The trial resulted in a failure by the jury to arrive at a verdict on account of disagreement as to the guilt of the accused, under the evidence and instructions of the court, and the commonwealth's attorney has brought the case here by appeal, as provided by sections 335 and 337 of the Criminal Code, regulating procedure in criminal cases, insisting that it is important to the correct and uniform administration of the criminal law that this court should determine the questions before the appellee is again put upon trial.

The appellee made many objections and saved many exceptions to the decisions of the court upon the trial adverse to him, and insists that these decisions be also reviewed. The authority of this court to review decisions and judgments of the circuit court, in criminal trials, is confined and limited by the provisions of the Criminal Code, and beyond the authority there granted this court cannot go. Section 335 of the Criminal Code provides:

"An appeal shall only be taken on a final judgment, except on behalf of the commonwealth. An appeal by the commonwealth from a decision by the circuit court shall not suspend the proceedings in the case. * * *"

Section 337, supra, provides that an appeal by the commonwealth's attorney must be taken at the term at which the decision is rendered. An appeal may be taken by the commonwealth from the decisions of the circuit court when a mistrial has been had, as in this case, and even when an acquittal of the accused is the result of the trial, if the attorney for the commonwealth and the Attorney General shall be of the opinion that an error to the prejudice of the commonwealth has been made by any decision of the circuit court and it is important for a correct administration of the criminal law that this court should review the decision. The reason for the legislation is apparent, when it is considered that, if a decision prejudicial to the commonwealth results in the acquittal of the accused, he cannot be required again to undergo a trial, however erroneously or mistakingly his acquittal was brought about. The right of the accused to an appeal, however, is different. He suffers no harm unless he is convicted, and, if he suffers conviction, he may appeal from the final judgment and bring up for review all of the errors which are prejudicial to him in the proceedings. It will be observed that the Code expressly provides that the accused can appeal from a final judgment only. He loses nothing by this. He is granted an appeal from the final judgment, but he cannot appeal before judgment against him and afterwards, too. Neither can the accused prosecute a cross-appeal, upon an appeal by the commonwealth, for the purposes for which an appeal is allowed to it. Smith v. Com., 5 Ky. Law Rep. 852; Riley v. Com., 55 S.W. 7, 21 Ky. Law Rep. 1406; Com. v. Matthews, 89 Ky. 287, 12 S.W. 333, 11 Ky. Law Rep. 505; Com. v. Bullock, 67 S.W. 992, 24 Ky. Law Rep. 78; Com. v. Hourigan, 89 Ky. 305, 12 S.W. 550, 11 Ky. Law Rep. 509; Com. v. Huber, 126 Ky. 456, 104 S.W. 282, 345, 31 Ky. Law Rep. 845, 929.

The commonwealth can, however, appeal only from decisions of the court which are adverse to it. For the reasons stated, only such decisions of the court below as were adverse to the commonwealth and to which the attorney for the commonwealth saved exceptions, will be considered. The indictment was based upon the accusation that the appellee was the sheriff of Graves county for the term beginning on the first Monday of January, 1906, and that as such he collected the tax due the county of Graves for the year 1906, amounting to the sum of $1,031, which had been levied upon the franchise of the Illinois Central Railroad Company, and fraudulently converted it to his own use. To the indictment the appellee entered a plea of not guilty. The proof showed that the tax was received by the appellee; that it was never charged to him in any settlement made by him with a commissioner of the fiscal court, nor was it accounted for by him to the county in any way. The appellee admitted having received the tax, but denied the fraudulent conversion of it, and contended that the tax had never been certified by the county clerk to him for collection; that he was in a low state of health at the time he received the check from the railroad for it, and was practically unable to either physically or mentally give his business any attention, and had no memory of the transaction; that his settlements were made up by the commissioner of the fiscal court, without his presence or assistance; that he did not know that he was not charged with the tax until five or six years afterward, when the county was having an investigation of the affairs of his office made, when for the first time he learned that he had not accounted for the tax; that he had during his term of office paid all that the commissioner of the fiscal court informed him that he was due the county, upon his settlements; that when he learned that he had never accounted for the franchise tax, and demand was made by the county of him for it, he was then financially unable to pay it, and had no money with which to pay it. The commonwealth offered proof tending to show that the appellee made conversions of the public money, in different amounts and at different times, during each year of his term of office, and that during his four-year term, he failed to account to the county for about $14,000 of the public moneys. The manner of making this proof by the commonwealth we do not pass upon, as the questions are not before us. This statement of what the evidence tended to show is given for the purpose of determining the correctness of the decisions adverse to the commonwealth upon the admission and rejection of evidence, and the decisions made in giving instructions.

The proof of the facts which this evidence seems to have been offered to show was admitted under the rule that in a prosecution for embezzlement where the accused relies for a defense upon absence of intent upon his part to make the fraudulent conversion, or that his act was the result of oversight, accident, or mistake, evidence of other acts of embezzlement are admissible to show guilty knowledge in the commission of the act charged. Morse v. Com., 129 Ky. 294, 111 S.W. 714, 33 Ky. Law Rep. 831, 894.

First. The attorney for the commonwealth offered to prove, by the person who was clerk of the county court during appellee's term of office, that the appellee had failed to report to the county court the collections made by him of the...