Hodges v. Com., s. 79-CA-1378-M
| Decision Date | 06 February 1981 |
| Docket Number | 80-CA-946-MR,Nos. 79-CA-1378-M,s. 79-CA-1378-M |
| Parties | Jack Preston HODGES, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Jack Preston HODGES, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Jack Farley, Public Advocate, Frankfort, for appellant; Allen W. Holbrook, Morehead, of counsel.
Steven L. Beshear, Atty. Gen., Frankfort, E. E. Blackford, Sam E. Isaacs, II, Asst. Attys. Gen., Frankfort, for appellee.
Before HAYES, C. J., and GANT and WHITE, JJ.
Appellant, a deputy sheriff in Warren County, was convicted in Franklin Circuit Court of ten counts of theft by deception, KRS 514.040, nine of which convictions were for felonies and one for a misdemeanor. His sentence was fixed at one year on each felony and one month on the misdemeanor, all to be served concurrently, appellant being placed on probation and ordered to make restitution of $2,088.67.
The convictions were the result of a series of expense claims which appellant filled out or caused to be filled out, which claims were filed with the Kentucky Department of Finance in Frankfort, these claims being for mileage and expenses for the transportation of prisoners pursuant to KRS 64.070 and KRS 440.090, and regulations thereunder. The trips were both interstate and intrastate. On the out-of-state trips, the appellant, on each claim, would list himself as the conveying officer and another deputy as guard, sign the claim for himself and either sign the name of the other deputy or procure that signature. When these claims were received in Frankfort, they were processed by the Department of Finance, then sent to the Treasury, where checks were issued in the name of the officers listed on the claims. Upon receipt of the checks in Warren County, appellant would either sign the name of the listed guard or use some ruse to obtain the signature of that guard. Each of the guards testified that he did not accompany the appellant on the trip for which the check was issued.
The intrastate trips comprised three counts, the evidence of the Commonwealth being that several trips listed on the claims filed by the sheriff's office for conveying prisoners were for trips not made at all or not made by the listed officer.
Appellant's defense was that, although the deputy whose name was listed on the claims did not accompany him on these out-of-state trips, he was, in fact, accompanied by another deputy, one C. J. Womack. Ms. Womack was a female officer of the department, appellant testifying that the reason for not listing her name on trips to California, Florida and North Carolina was that she was "an undercover agent" and that he did not want that fact exposed to the other deputies. He also admitted, under questioning, that he did not think his wife would approve. Appellant and Ms. Womack testified that he had paid her the sums received for the other guards, although she had made a prior inconsistent statement, even denying several of the trips. One of the trips was made by the appellant and his wife, who had been on a trip to Philadelphia and had stopped by Fayetteville, North Carolina to return a prisoner, appellant listing another deputy as guard. Thus, argues the appellant, the Commonwealth suffered no loss, as it paid for a conveying officer and a guard and received both, although the guard was not the one named in the checks and claims.
The first threshold is the question of venue, which is raised for the first time on appeal. Appellant contends that venue was exclusively in Warren County, as it was in that county where the checks were received and cashed, and thus the theft, if any, occurred in Warren County. The Commonwealth argues that the error was waived under the provisions of KRS 452.650, which reads:
Waiver of venue. The venue of the prosecution may be waived by the defendant and the failure to make a...
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