Commonwealth v. Duvall

• Decision Date: 24 June 1927
• Citation: 220 Ky. 771,295 S.W. 1047
• Parties: COMMONWEALTH v. DUVALL.
• Court: Kentucky Court of Appeals

295 S.W. 1047

220 Ky. 771

COMMONWEALTH v. DUVALL.

Court of Appeals of Kentucky.

June 24, 1927

Appeal from Circuit Court, Carter County.

Eugene Duvall was charged by indictment with embezzlement, and from a judgment of acquittal entered on a verdict of not guilty the Commonwealth appeals, under Cr. Code Prac. § 337, and requests to have the law certified. Questions presented answered, and answers certified as the law.

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty Gen., for the Commonwealth.

J. M Theobald, of Grayson, for appellee.

DRURY C.

Eugene Duvall was charged by indictment with embezzlement. Upon his trial under that indictment, at the conclusion of the evidence for the commonwealth, the trial court sustained Duvall's motion for a peremptory instruction to acquit him. The jury was so instructed and returned a verdict of "Not guilty." From the judgment entered upon that verdict, the commonwealth, proceeding under section 337 of the Criminal Code, has appealed and asked to have the law certified.

Duvall had been employed as a traveling salesman and collector by the McDavid-Prichard Company, a corporation engaged in the wholesale grocery business at Hitchins, in Carter county, Ky. He was furnished with weekly collection and cash booklets containing these instructions:

"Fill in all dates correctly. See that discounts, allowances, and cash received equal the invoice intended to be paid. Make full explanation of allowances at bottom of page. To avoid discrepancies, have customers to pay by even bills.

Be sure that your remittances and your expenses equal your collections for the week. Do not use collections on a previous week. Each book must be complete and final settlement independent of any other book."

He was to report and settle his accounts weekly. These weekly report booklets were printed somewhat in the form of a diary. Thus a page was prepared for the use of the salesman on Monday, similar pages for Tuesday and the other days in the week. Other pages were so printed as to enable the salesman conveniently to keep account of his various expenses. Other printed pages were made detachable for use of the salesman in making remittances. On Monday, August 3, 1925, Duvall's booklet containing his account for the week ending August 1 was received by the McDavid-Prichard Company. In it Duvall reported receipt of $113.08, deducting $12.70 for expenses, and accounted for a balance of $100.38. On Tuesday of the week covered by that booklet, he had called on G. W. Adkins, who was engaged in business at Bascom, in Elliott county, Ky. Adkins had recently bought from the McDavid-Prichard Company a bill of goods which amounted to $30.35. From this Duvall deducted a freight allowance of 57 cents, a discount of 6 cents, and Adkins paid the remaining $29.72 to Duvall, and Duvall receipted Adkins' bill. This $29.72 was not included in Duvall's weekly report. The McDavid-Prichard Company afterwards wrote to Adkins and asked for payment of the account. Adkins mailed it the bill with Duvall's receipt upon it. When this receipted bill reached the McDavid-Prichard Company, it began an investigation which finally resulted in this and other indictments being returned against Duvall for embezzlement. When confronted by the disclosures that resulted from the investigation, Duvall claimed he had lost the money, but said not how, when, where, or in what way he had lost it. The evidence on the trial developed these facts, and as these indictments were returned in Carter county, where the wholesale house was situated, and this $29.72 was collected in Elliott county, the trial court perhaps concluded that there was a failure to show the commission of any crime in Carter county, and it may be that for that reason the jury was directed to acquit Duvall. If the trial court did this for that reason, its action was erroneous, Duvall came into possession of this money lawfully. The collection of it was a part of his duty under his employment.

When Duvall, as the agent of the McDavid-Prichard Company, in the course of his employment received and collected from Adkins money due the McDavid-Prichard Company and feloniously failed to pay it over, the crime was complete. It was not necessary to introduce other evidence to show a fraudulent intent upon his part to convert it to his own use. That he so intended might be reasonably inferred from the other facts proved. See Morse v. Commonwealth, 129 Ky. 294, 111 S.W. 714, 33 Ky. Law Rep. 831, 894; Commonwealth v. Jacobs, 126 Ky. 536, 104 S.W. 345, 31 Ky. Law Rep. 921, 13 L.R.A. (N. S.) 511, 15 Ann.Cas. 1226. When Duvall made his weekly report and failed to include and account therein for this $29.72, which he had collected during the week, covered by that report, and sent or delivered that report to the office of the McDavid-Prichard Company, in Carter county, Ky. the crime was committed in Carter county. The receipt of this money was lawful, the retention of it was unlawful. It was not necessary for the commonwealth to show that Duvall spent this money in Carter county, or to show that he spent it at all. He may now have every cent of it, and yet be guilty.

The intention of Duvall to convert this money to his own use and his retention of it for that purpose constituted the crime of embezzlement, and the crime became complete when he formed the intention to and did so retain and convert it. If the commonwealth could establish the formation and carrying out of the intention of Duvall to retain and convert this money in Elliott county, he could be convicted in that county; but a man's intention is a difficult matter to prove, and bare intentions do not constitute a crime, but an intention, when felonious and carried into effect, does constitute a crime. Duvall may have had the intention in Elliott county to retain and convert this money. He may have thereafter repented and later reported and accounted in full, but when he persists in his intention, and in Carter county delivers to his employer, and it makes no difference how he delivers it, a report wherein he conceals and withholds this money, the crime then becomes complete in Carter county, and the venue is in Carter county, where Duvall should have accounted for this money and failed to do so.

See Mangham v. State, 11 Ga.App. 427, 75 S.E. 512; State v. Hengen, 106 Iowa 711, 77 N.W. 453; State v. Bailey, 50 Ohio St. 636, 36 N.E. 233; United States v. Reyes, 1 P. I. 249; United States v. Cardell, 23 P. I. 207; State v. Hoshor, 26 Wash. 643, 67 P. 386; Campbell v. State, 35 Ohio St. 70; State v. Small, 26 Kan. 209; Hopkins v. State, 52 Fla. 39, 42 So. 52; People v. Davis, 269 Ill. 256, 110 N.E. 9; Kossakowski v. People, 177 Ill. 563, 53 N.E. 115; State v. Maxwell, 113 Iowa 369, 85 N.W. 613; Dix v. State, 89 Wis. 250, 61 N.W. 760.

In saying what we have said, we are not overlooking the case of Morse v. Commonwealth, supra. In that case, Morse, who was a traveling salesman for the Consumers' Distillery Company a Kentucky corporation, with its principal place of business at Louisville. Morse, while so employed, in Kenton county sold Henry Staggenburg $59.95 worth of whisky certificates. He represented himself to Staggenburg as being Homer Marion, and gave receipts to Staggenburg, signed "Homer Marion." Staggenburg gave him checks payable to Homer Marion, and he cashed these checks under that name in Kenton county, thus evidencing an intent in Kenton county to convert this money to his own use. Nor have we overlooked the case of Commonwealth v. Jacobs, supra. In that case Jacobs was employed by a life insurance company in Cincinnati to collect life insurance premiums due it from people living in Louisville, and to account for such collection either to the home office in Cincinnati, or the superintendent in Louisville. Jacobs collected money, but failed to account. He was indicted in...