Duvall v. Commonwealth

• Decision Date: 19 October 1928
• Parties: DUVALL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

10 S.W.2d 279

225 Ky. 827

DUVALL v. COMMONWEALTH.

Court of Appeals of Kentucky

October 19, 1928

Appeal from Circuit Court, Carter County.

Eugene Duvall was convicted of embezzlement, and he appeals. Affirmed.

J. M Theobald, of Grayson, for appellant.

J. W Cammack, Atty. Gen., and Geo. H. Mitchell, Asst. Atty. Gen for the Commonwealth.

DIETZMAN J.

The appellant was convicted of the offense of embezzlement, and sentenced to serve two years in the penitentiary. From that judgment he appeals.

Prior to being indicted, the appellant 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. The indictment under which he was convicted in this case is one of a series of indictments returned against him for the alleged embezzlement of a number of collections he made for his principal. He was tried on another of these indictments and acquitted under a peremptory instruction. On an appeal to this court by the commonwealth for the purpose of having the law certified, pursuant to the provisions of Criminal Code of Practice, § 337, we held that the lower court erred in giving the peremptory instruction, and that the case was one for the jury. Commonwealth v. Duvall, 220 Ky. 771, 295 S.W. 1047. In that case may be found a detailed statement of the way Duvall was required to make reports and to settle for his collections. The case at hand involved the claimed embezzlement of a collection of $19 from D. M. Evans, of Bruin, Elliott county. The appellant did not deny making this collection, nor did he contend that he ever settled with his principal for it. His defense in this case was that he lost the money thus collected. The jury rejected his defense, and found him guilty as stated.

Appellant relies on two grounds for a reversal of the judgment. The first of these grounds is that the court erred in permitting the commonwealth to introduce evidence concerning other collections made by him for his principal, which ran over a period of about six months, during which time this Evans collection was made, and for which he had failed to account. He contends that this evidence falls within the rule forbidding evidence of other offenses to be introduced against one on trial for a specific offense. He insists that in the former Duvall Case, which reached this court, this question was determined in his favor by the following language found in that opinion:

"When the commonwealth proved that Duvall had received this money and had thereafter reported and failed to include and account for it in that report, the proof of the crime was complete, even though he intended thereafter to account for it."

While, of course, the general rule concerning the introduction of testimony relating to other offenses is as stated by the appellant, yet there is also an exception to that rule to the effect that testimony about other offenses may be introduced, where it is necessary "to establish identity, or guilty knowledge, or intent, or motive for the commission of the crime under trial, or when other offenses are so interwoven with the one being tried that they cannot well be separated from it in the introduction of relevant and competent testimony, or when the independent offense was perpetrated to conceal the crime for which the accused is on trial." Romes v. Commonwealth, 164 Ky. 334, 175 S.W. 669; Medlock v. Commonwealth, 216 Ky. 718, 288 S.W. 670. In Kirby v. Commonwealth, 206 Ky. 535, 267 S.W. 1094, we said that criminal intent and guilty knowledge, when necessary, may likewise be established by showing the crime charged to be but one of a criminal plan or system.

The evidence offered in the instant case, under the circumstances of this case, clearly falls within the exception to the general rule. Appellant admitted collecting the money in question, and admitted failing to pay it over to his principal. His defense was that he lost it. The evidence of these other offenses tended to prove a criminal intent upon his part in failing to account for these collections, and that such failure was not due to an absence of such intent as he claimed under his defense of the loss of the money. The language used by us in the former Duvall Case, and relied upon by appellant, was only meant as stating what the commonwealth had to prove as a minimum, in order to be entitled to have its case submitted to the jury. It was not meant to preclude any other relevant and competent testimony that the commonwealth might also wish to introduce in evidence. We find no merit in the first contention of the appellant.

His second ground for reversal is directed to the instructions and his complaint as to them falls under two heads. He first insists that instruction No. 1 is erroneous, because it authorized the jury to find him guilty if it believed he embezzled the sum "of $19, or any other sum of value." Appellant argues that he was being tried for the specific offense of having collected $19 in the month of May, 1925, from Evans, and having embezzled...