G.T. Wood, Jr. v. Commonwealth

• Decision Date: 14 May 1929
• Citation: 229 Ky. 459
• Parties: George T. Wood, Jr. v. Commonwealth.
• Court: Supreme Court of Kentucky

Page 459

229 Ky. 459

George T. Wood, Jr. v.Commonwealth.

Court of Appeals of Kentucky. Criminal Division.

Decided May 14, 1929.

1. Embezzlement. — Ky. Stats., sec. 1358a, which is Act March 21, 1902, making it unlawful to fraudulently dispose of property of another, held not repealed by section 1358b, which is Act March 24, 1908, making it misdemeanor to sell or transfer personal property, where possession is in one person and title in another, but the two acts are to be read together, and later one is applicable only to cases not coming within earlier.

2. Embezzlement. — Indictment under Ky. Stats., sec. 1358a, for converting property of another charging conversion of certificate of stock, held not demurrable on ground that such instrument was not property or money or other thing of value within statute, where certificate was indorsed in way making it transferable by delivery, since such certificate is "property" within statute, and is undoubtedly within term "other thing of value."

3. Embezzlement. — Evidence held sufficient to sustain conviction of converting property of another without owner's consent under Ky. Stats., sec. 1358a, where securities which had been purchased outright were converted by defendant, who was broker, through his agent.

4.Criminal Law.— In reviewing sufficiency of evidence in criminal case, it is duty of reviewing court to give evidence construction most favorable to commonwealth of which it is reasonably susceptible, and, if it then tends to prove guilt of defendant, case should be submitted to jury.

5.Criminal Law.— Principal is liable for violation of criminal law by agent, where agent acts directly under principal's commands, where he acts within scope of employment, though without specific instruction, and where act is done for principal by his knowledge and consent.

6.Criminal Law.— One may not be convicted on mere suspicion of guilt, and, where circumstances are as consistent with innocence as with guilt, reversal of conviction will be granted, but reviewing court will carefuly refrain from usurping jury's functions.

7.Criminal Law.— Verdict in criminal case is deemed contrary to evidence only when it is so patently against truth of matter as to shock conscience and sense of justice.

8. Embezzlement.— In prosecution under Ky. Stats., sec. 1358a, for converting property of another without owner's consent brought against broker for conversion of stock certificate, admission of evidence respecting trading account of defendant and brother under fictitious names and respecting firm's failure for large sum 38 days after conversion held not error.

9.Criminal Law.— In prosecution under Ky. Stats., sec. 1358a, brought against broker for conversion of stock certificate, in which evidence was admitted as to defendant's trading account under fictitious name and subsequent failure of firm for large sum, court's failure to admonish jury as to purpose of such collateral evidence, if error, held not prejudicial.

10.Criminal Law.— In prosecution under Ky. Stats., sec. 1358a, for converting stock certificate, admission of bookkeeper's testimony as to insolvency of firm and losses in defendant's accounts held not erroneous on ground that books constituted best evidence, since bookkeeper was testifying from personal knowledge, and not as to contents of books.

Appeal from Jefferson Circuit Court

ARTHUR BENSINGER, JAMES P. EDWARDS, TRABUE, DOOLAN, HELM & HELM and BOOTH & CONNER for appellant.

J.W. CAMMACK, Attorney General, and JAMES.M. GILBERT, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY COMMISSIONER STANLEY.

Affirming.

The appellant, George T. Wood, Jr., appeals from a judgment sentencing him to serve two years in the penitentiary for violating section 1358a of the Statutes, which provides punishment for "any person who shall. . . dispose of or convert to his or her own use or the use of another, any money, property, or other thing of value without the consent of the owners thereof."

The indictment charges the appellant and his brother, Richard V. Wood, with conversion of a certain certificate for 20 shares of stock of the Standard Oil Company of Indiana belonging to James A. McGinnis, the "certificate being in the name of Thomson & McKinnon, the same having been duly assigned in blank by the said Thomson & McKinnon, then and there bearing the endorsement in blank and the signature of the said Thomson & McKinnon on the back thereof, when so endorsed and signed the same being then and there of the value of approximately $1,350.00."

1.The appellant contends that the statute under which he was convicted had been repealed by the act which is now incorporated in our statutes as section 1358b.The latter enactment did not have such effect.It merely supplements the first statute.The reasons for this conclusion are given in an opinion this day delivered in the case of the appellant's brother and former partner styled Richard V. Wood v. Commonwealth, 229 Ky. 452, 17 S.W. (2d) 440, to which reference is made.

2.It is further contended that the indictment was demurrable because it charged the defendant with the conversion of a certificate of stock, and such instrument is not property or money or other thing of value; that it is merely the evidence of the ownership of shares of stock in the corporation — not the shares themselves.Strictly and technically speaking, that is correct.Nevertheless, a certificate of stock, indorsed and signed in blank by the one to whom issued, ordinarily passes by delivery the title to the stock it represents.If the certificate has not been indorsed in such a way as to be transferable by delivery, and the signature of the owner was required before a transfer could be effected, there would be much force in the argument.

"Property" is a diversified term, and includes any species of right.Seesection 732, Civil Code, and Caldwell's Dictionary, title `Property."Sea v. Conrad, 155 Ky. 51, 159 S.W. 622, 47 L.R.A. (N.S.) 1074, Ann. Cas. 1915C, 318;Raydure v. Board of Supervisors, 183 Ky. 84, 209 S W. 19; Fayette Realty & Finance Co. v. Commonwealth, by, etc., 229 Ky. 556, 17 S.W. (2d) 722(decided March 22, 1929, not yet [officially] reported).In Brown v. Vancleave, 21 S.W. 756, 14 Ky. Law Rep. 821, it was held that an action can be maintained for the specific recovery of a certificate of stock.See, also, Harvey v. Bank of Marrowbone, 178 Ky. 793, 200 S.W. 28;Will's Adm'r v. Geo. Wiedemann Brewing Co., 171 Ky. 681, 188 S.W. 778, Ann. Cas. 1918E, 62.

In Simpson v. Jersey City Contracting Co., 165 N. Y. 193, 58 N.E. 896, 55 L.R.A. 796, it is said: "The distinctions [between the certificate and the stock] sought to be drawn, are largely, artificial.The truth is that it did have property here, in the common acceptation of the term, as well as in the eye of the law.Certificates of stock are treated by business men as property for all practical purposes.They are sold in the market, and they are transferred as collateral security for loans, and they are used in various ways as property."

In Daggett v. Davis, 53 Mich. 35, 18 N.W. 548, 51 Am. Rep. 91, Chief Justice Cooley thus expressed his views: `But we see no reason why, if the shares are converted by means of a wrongful use of the certificate, the owner in suing may not count upon the conversion of either.The shares are the property converted, but the certificate itself is also property; standing as it does as the representative of the shares, and as its conversion may take the shares from the owner, it seems to be as proper to count upon its conversion as upon the conversion of money or any chattel."

The text in 14 C.J. 479, thus classifies such an instrument: "It has been said that a certificate of stock, being merely the symbol or paper evidence of the ownership of shares of stock, is not in itself property and has no intrinsic value disconnected from the stock which it represents; but as it undoubtedly has a value in itself as a transferable symbol of property and evidence of the holder's right and title as a stockholder, like a negotiable instrument, it has often been held to be in itself property as representing the stock and so treated for many purposes.The certificate of stock as distinguished from the shares of stock which it represents, is not only property, but is tangible personal property."

The general classification of a certificate of stock was expressed in Sargeant v. Whitfield & Co., 226 Ky. 754, 11 S.W. (2d) 926, without extension.But that was a civil action for the recovery of the value of stock from holders with notice.

We are of the opinion that a certificate of stock as the evidence of ownership or symbol of property comes within the definition of "property" used in this statute, and may be the subject of embezzlement and conversion under the statute.Bass v. Commonwealth, 222 Ky. 310, 300 S.W. 866;People v. Williams, 60 Cal. 1.But we are not restricted to that classification in testing the indictment, for undoubtedly a certificate of stock indorsed in blank is included in the comprehensive term "other thing of value," used in the statute.

The particular certificate involved and described in this indictment was a "thing of value," costing McGinnis $1,338.50.He paid appellant and his partner that much money for it.It had value sufficient to enable appellant's firm to secure in part credit for $2,500 at their bank and with their brokerage correspondent.As the evidence disclosed, McGinnis lost nearly $1,350 by reason of being deprived of this certificate, and it would be hard to convince him that it was not a thing of value.We do not make these references to bring the evidence to bear in testing the indictment, but merely by way of illustration or suggestion that a certificate of stock thus described is a "thing of value."It would be hypertechnical, indeed, to hold that the stock certificate described was not the subject of...