Ellis and Connor v. Commonwealth

• Decision Date: 13 January 1920
• Citation: 186 Ky. 494
• Parties: Ellis and Connor v. Commonwealth.
• Court: Kentucky Court of Appeals

186 Ky. 494

Ellis and Connor v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 13, 1920.

Appeal from Fayette Circuit Court.

FRANK L. McCARTHY for appellants.

CHARLES H. MORRIS, Attorney General, and CHARLES I. DAWSON, Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE CARROLL — Affirming.

The appellants, Ellis and Connor, were indicted by the grand jury of Fayette county charged with "unlawfully and feloniously breaking and entering into the storehouse of Z. Kafogolis on October 8, 1919, with the fraudulent and felonious intent to take, steal and carry away therefrom articles of value and did then and there, unlawfully and feloniously take, steal and carry away therefrom one case of whiskey of the value of $36.00 and the property of Z. Kafogolis with the felonious and fraudulent intent to convert the same to their own use and to permanently deprive the owner of his property therein."

On a joint trial they were each found guilty, their punishment being fixed at confinement in the state penitentiary for a term of three years.

The indictment was found under section 1164 of the Kentucky Statutes providing in part that "If any person shall feloniously, in the night or day, break any . . . storehouse, . . . with intent to steal, or shall feloniously take therefrom or destroy any goods, wares, or merchandise, or other thing of value . . . he shall be confined in the penitentiary not less than one nor more than five years."

On this appeal the argument of counsel for Ellis and Connor is that the motion made in arrest of judgment should have been sustained because the indictment, as well as the evidence, showed that the accused had not committed a public offense. This argument is rested on the ground that the whiskey was not at the time of the breaking and stealing complained of a thing of value, or goods, wares or merchandise within the meaning of the statute. And of course if this were so the accused, although the evidence clearly establishes that they broke into the place of Kafogolis and carried away therefrom a case of whiskey, did not commit any offense under the statute; because no offense under the statute can be committed unless the thing taken is "goods, wares or merchandise" and has some value, however small it may be.

It is true, as argued by counsel, that at the time the whiskey was taken the manufacture and sale of whiskey was prohibited by what is known as the "Federal War Prohibition Act" and also true that the owner of the whiskey could not at that time sell it on the market or otherwise, but the fact that the whiskey was not the subject of lawful traffic, or the fact that its sale was prohibited by law did not deprive it of its character as "goods, wares or merchandise" within the meaning of the statute, or of its value as goods or merchandise.

Webster defines "merchandise" — "To trade or traffic in whatever is usually bought or sold in trade or market, or by merchants; wares; goods; commodities." "Goods" are defined as "wares; chattels; merchandise." One definition of "wares" is — "articles of merchandise, goods or commodities." It will thus be seen that the words "goods, wares and merchandise" in their common and ordinary usage and according to their established definitions embrace every species of tangible personal property. Whiskey of course was property and a thing of value before its sale was made unlawful, and plainly it did not lose its nature as property or as a thing of value by the prohibition of its sale. It yet remains an article of property,...