Commonwealth v. Lewis
| Decision Date | 24 October 1889 |
| Citation | 12 S.W. 266 |
| Parties | COMMONWEALTH v. LEWIS. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Harlan county.
"Not to be officially reported."
Abner Lewis was indicted for embezzlement. The court sustained a demurrer to the indictment, and the commonwealth appealed.
P. W. Hardin, Atty. Gen., for the Commonwealth.
The offense of which appellee was accused is embezzlement, charged to have been committed by him in feloniously and willfully misappropriating, misapplying, and converting to his own use and benefit $1,000 proceeds of vacant land in Harlan county, collected by him as county judge. By statute each county has the right to dispose of vacant land within its limits, at a price to be fixed by the county court, not less than five dollars for 100 acres, and hold the proceeds for county purposes. And as such vacant land cannot be appropriated except in pursuance of an order of the county court of the county where it lies, and upon payment of the price fixed, the accused may be regarded, as stated in the indictment, the proper custodian, in virtue of his office, of the money so collected by him. But the charge, in general terms, as made in the indictment, that he appropriated the money for his own use and benefit, is not sufficient to constitute the offense of embezzlement. For as such custodian he had the right to hold it until required by law to account for and pay it over, and before that he would not be amenable to either a civil action, or criminal prosecution. It seems to us, to make out the offense, it is necessary to charge not merely that he had used the money for his own benefit, but had failed and refused to account for or pay it over at the time, in the manner, and for the purpose required by law, for, while he stands bound and ready to do so when legally required, there cannot be an embezzlement. The judgment sustaining the demurrer to the indictment is affirmed.
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... ... Revised Statutes, 1889, secs ... 8613, 8628, 8633, 8635; State v. Rubey, 77 Mo. 610; ... State v. Hebel, 72 Ind. 361; Com. v. Lewis, ... 12 S.W. 266; Brandt v. State, 41 Iowa 593; Vance ... v. State, 35 Ark. 176; Chaplin v. Lee, 25 N.W ... 609. Third. Because it should ... People , 110 Ill ... 627; People v. Tomlinson , 66 Cal. 344, 5 P. 509; ... Golden v. State , 22 Tex. Ct. App. 1, 2 S.W. 531; ... Commonwealth v. Bennett , 118 Mass. 443 ... But in ... this case the pleader charged the conversion to have been ... unlawful, wilful, ... ...
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Commonwealth v. Kelly
... ... cestui que trust and flee the state, so that no demand could ... be made of him, a demand would hardly be considered necessary ... to establish his crime ... We are ... referred with great confidence by the appellee to the case of ... Commonwealth v. Lewis, 12 S.W. 266, 11 Ky. Law Rep ... 421, as establishing the principle that in a case like the ... one at bar a demand of the trust fund is a necessary ... allegation in an indictment for the crime of embezzlement ... Assuming that this case is in point, it was, for all ... practical purposes, ... ...
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State v. Siddoway
... ... State v. Brandt, 41 Iowa 593; ... State v. Parsons, 54 Iowa 405, 6 N.W ... [211 P. 970] ... 579; Commonwealth v. Lewis (Ky.) 12 S.W ... 266; State v. Govan, 48 Ark. 76, 2 S.W ... 347; State v. Hunnicut, 34 Ark. 562 ... In ... State v. Brandt, ... ...
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Commonwealth v. Kelley
...be considered necessary to establish his crime. We are referred with great confidence by the appellee to the case of Commonwealth v. Lewis, 12 S. W. 266, 11 Ky. Law Rep. 421, as establishing the principle that in a case like the one at bar a demand of the trust fund is a necessary allegatio......