Dunavant v. Commonwealth

• Decision Date: 13 June 1911
• Citation: 144 Ky. 210,137 S.W. 1051
• Parties: DUNAVANT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

137 S.W. 1051

144 Ky. 210

DUNAVANT v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 13, 1911

Appeal from Circuit Court, Laurel County.

William Dunavant was convicted of embezzlement, and appeals. Reversed and remanded.

Sam C Hardin, for appellant.

James Breathitt, Atty. Gen., and Charles H. Morris, for the Commonwealth.

CARROLL J.

The indictment under which the appellant was convicted charges in substance that about July 1, 1908, he entered into a contract with F. C. Jones, who was about to engage in mining and shipping coal, whereby it was agreed between them that Dunavant as the employe of Jones should act as bookkeeper and that all shipments of coal from the mines of Jones should be made by and billed in the name of Dunavant, and the proceeds of sales were to be received by Dunavant and turned over to Jones, for which service Dunavant was to receive a stipulated compensation. That under this agreement Dunavant entered the employment of Jones, and continued in his employment until January 15, 1909. That in January 1909 while acting in such relation Dunavant sold coal amounting to $1,274.70, which belonged to Jones, and fraudulently converted this sum to his own use. Jones testified, in substance, that about the 1st of August, 1908, Dunavant, who was at the time and had been for a year or more operating a coal mine he had leased from one Curvin, sold his lease to Jones, together with a lot of personal property, for which Jones agreed to pay him $600. He further testified that, as a part of the contract of purchase and sale, he entered into an agreement with Dunavant, by which Dunavant was to weigh the coal, keep the books, and attend generally to the operation of the mine, and for this service he was to receive one-half the profits made in the operation of the mine; that the coal was to be billed in the name of Dunavant, who was to receive the checks for coal sold, and turn them over to Jones; that Dunavant was also to receive one-half the rent of the houses in the coal camp that the miners lived in; that under this arrangement Dunavant continued to work until about the 14th of January, 1909, when he quit; that some time in January previous to the 14th Dunavant collected on coal that was shipped $1,270 and more and failed to pay the same over to him.

Dunavant testified, in substance, that Jones was to pay him $1,250 as the purchase price of the property and lease that he sold to him, and that he was to operate the mine as he had been doing until the 15th of January, 1909; that under the contract all the money received from coal sold up to January 15, 1909, belonged to him; that he was not to turn over to Jones either the checks or the money received for the coal; that Jones had no interest whatever in the check for $1,274.70 mentioned in the indictment and upon which the prosecution was based, as this check was the proceeds of coal sold before January 15, 1909.

It will thus be seen that there was wide difference in the evidence of Jones and Dunavant as to the nature and terms of the contract entered into between them in July or August, 1908; Jones' version of the contract being that all the money received for coal after that time belonged to him, and that Dunavant as bookkeeper and manager was to collect the coal bills and pay the money to him, receiving for his services one-half the net profits made in the operation of the mine, and one-half the rent of the houses occupied by the miners; while Dunavant's version of it is that he was to continue to operate the mine until January 15, 1909, as he had been before he sold it to Jones, and that all the money received from sales of coal during this time belonged to him.

The court instructed the jury as follows:

"If you believe from the evidence beyond a reasonable doubt that on or about

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