Jarvis v. Com.
| Decision Date | 12 November 1929 |
| Citation | 231 Ky. 505,21 S.W.2d 828 |
| Parties | JARVIS v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
As Modified, on Denial of Rehearing, December 10, 1929.
Appeal from Circuit Court, Harlan County.
G. J Jarvis was convicted of embezzlement, and he appeals. Reversed and remanded.
G. J Jarvis, of Harlan, for appellant.
J. W Cammack, Atty. Gen., and G. H. Mitchell, Asst. Atty. Gen., for the Commonwealth.
G. J. Jarvis was indicted for embezzlement under section 1358a, Kentucky Statutes. On the trial of the case he was found guilty and his punishment fixed at five years' imprisonment. He appeals.
Section 1358a, Kentucky Statutes, is as follows: "That any person who shall sell, 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 owner thereof, shall be punished by confinement in the penitentiary for not less than one nor more than five years; if the money, property, or other thing of value so sold, disposed of or converted to his or her own use be of the value of twenty dollars or more; or be confined in the county jail for not less than one nor more than twelve months if the value be less than twenty dollars."
The facts constituting the offense are stated in the indictment in these words: "The said G. J. Jarvis in the state and county aforesaid and on the 21st day of March, 1928, and before the finding of this indictment, he then and there being the attorney and collector of and for Mary Hocever, unlawfully, fraudulently and feloniously and without the consent of the said Mary Hocever did convert to his own use money of value belonging to Mary Hocever, further description of which to the grand jurors unknown, the personal property of said Mary Hocever, which said money had then and there been entrusted to the care, custody and keeping of said defendant by reason and virtue of said relationship of attorney and client and collectorship existing aforesaid with the fraudulent and felonious intent then and there to permanently deprive the said owner of her property therein, against the peace and dignity of the commonwealth of Kentucky."
It will be observed that under the statute the offense is not a felony unless the thing converted is of value $20 or more. It will also be observed that the indictment does not show that the money converted was of value $20 or more, or what amount was converted. The indictment is not sufficient to support a conviction for felony, as it does not show this; but it is good as an indictment for misdemeanor. As the indictment only charges a misdemeanor, the defendant cannot be convicted of a felony under it. Section 262 of the Criminal Code of Practice provides:
"Upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty...
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Duncan v. Com.
...of Practice a defendant may not be found guilty of a crime higher in degree than that charged in the indictment, and in Jarvis v. Com., 231 Ky. 505, 21 S.W.2d 828, where a judgment convicting on an indictment for felonious embezzlement was reversed because it did not specify that the amount......
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...sec. 122. One charged with a misdemeanor may not be convicted of a felony. Criminal Code of Practice, sec. 262; Jarvis v. Commonwealth, 231 Ky. 505, 21 S.W. 2d 828. Appellant's demurrer to the indictment was overruled but this error of the court was not included in the motion for a new tria......
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Jarvis v. Commonwealth
... ... To illustrate: If an indictment for grand larceny fails to state that the goods stolen were of the value of $20 or more, a conviction for grand larceny cannot be sustained, although the proof on the trial might show this fact." ... To same effect, see Oakley v. Com., 220 Ky. 313, 295 S.W. 142 ... The indictment here was good upon demurrer, for it stated facts showing that a misdemeanor had been committed. The defendant, therefore, waived no right by not demurring to the indictment. Section 276 of the Code, providing the grounds upon which a ... ...
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...judgment must be reversed. One charged with a misdemeanor may not be convicted of a felony. Crim.Code of Prac. Sec. 262; Jarvis v. Com., 231 Ky. 505, 21 S.W.2d 828. When the case is returned to the circuit court it may strike count three from the indictment and try appellant on counts one a......