Joy v. Commonwealth

• Citation: 203 Ky. 426,262 S.W. 585
• Parties: JOY v. COMMONWEALTH.
• Decision Date: 27 May 1924
• Court: Court of Appeals of Kentucky

262 S.W. 585

203 Ky. 426

JOY v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 27, 1924

Appeal from Circuit Court, Hopkins County.

W. H Joy was convicted of embezzlement, and appeals. Affirmed.

Cox &amp Grayot, of Madisonville, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

SAMPSON C.J.

Appellant Joy complains of the judgment of conviction entered in the Hopkins circuit court against him on an indictment accusing him of the crime of embezzlement, under section 1202 Kentucky Statutes, and fixing his punishment at confinement in the state penitentiary for a period of one year. To reverse the judgment appellant prosecutes this appeal, insisting: (1) That the court should have given a peremptory instruction to the jury to find him not guilty because of the insufficiency of the evidence; (2) instruction No. 1 was erroneous in that it omitted to submit to the jury the question of whether the Louisville & Nashville Railroad Company is a corporation; (3) the court failed in its instructions to submit to the jury the defense's theory of the case; and (4) the court erred to the prejudice of appellant's substantial rights in refusing to grant him a new trial because of newly discovered evidence set forth in his motion for new trial supported by affidavit.

1. Appellant had been engaged by the Louisville & Nashville Railroad Company as third trick operator at its passenger depot at Madisonville for about two weeks, when approximately $600 disappeared from its money drawers while appellant was on duty. His hours were from 11:30 p. m. until 7:30 a. m. He admits the money disappeared, but he says that while he was sitting in the office, between 2 and 3 o'clock a. m. on July 4, 1923, a strange man with a slight growth of beard came in the door behind him, covered him with a pistol, and directed him to put up his hands. Immediately following this the highwayman directed him to open the money drawer which he did. After doing that he was directed to lay face downward on the floor. While in this position he says the highwayman took the money from the drawers and disappeared, and he has never seen him since; that he did not know who he was although he was not masked.

The commonwealth proved by two policemen that they passed the depot on their beat about 2 o'clock a. m., and that they saw appellant sitting in the office of the depot reading a newspaper. His coat was off, and they observed nothing unusual about him; that without disturbing him they passed on down the tracks to the crossing only a short distance from the depot where they met an acquaintance and engaged in conversation; that they had not been there more than 10 or 15 minutes until they saw appellant coming around the square, looking for a policeman. When he came up to the officers he told them he had been robbed and took them to the depot, where they found the cash drawer empty, the lights out, and the door locked.

Appellant continued to work for the railroad company until the regular man returned to take the place appellant was supplying, and appellant was sent to take charge of another office some distance away. He remained in this new place only a few weeks when he was arrested on a charge of embezzlement. The commonwealth also proved that appellant was found with several hundred dollars in his possession, mostly in large bills, and it sought to show that this money was the result of the embezzlement. It also proved by the policemen who were near the depot and several other persons who passed by it between 2 and 3 o'clock a. m. that there was no suspicious looking person about the depot; that no one went to the depot or from it about the hour at which appellant says the robbery occurred. It was further shown by the commonwealth that appellant had a few hundred dollars hidden in his necktie, and this money was taken out by him in the presence of the officers when he was called upon for bond. He explains the cash in his tie by saying that he had the money on hand and did not want to put it in the bank, and for safe-keeping put it in his tie. He further proved that he had on deposit some months before in Kansas approximately $1,100; that he had sold a restaurant for $340; that while he was working at Earlington, Ky. he had a roll of money. Several witnesses testified to having seen him with considerable sums of money, generally described as a roll of bills. This was a short time before the embezzlement was charged to have happened.

As appellant admits he was checked into the office at 11:30 o'clock that night with the money in the drawer, and it disappeared in a mysterious way, the evidence was sufficient to carry the case to the jury. Appellant's story of how the robbery occurred is very unsatisfactory. It is not at all convincing. The story is in outline only, his statement being as follows:

"Well, on the night of the 3d, I went on duty as usual at the Madisonville station as third trick operator and other duties required at that office. On the morning of the 4th--I judge between 2 and 3 o'clock--I was sitting with my back to the door reading a newspaper and a man approached me with a gun in his hand, invited me to throw up my hands, demanding that the cash drawer should be opened, and of course I opened the cash drawer, and he relieved us of what money we had on hand at the station.

Q. Did he command you to lie down? A. Yes; he commanded me to lie down face down on the floor.

Q. Did he get the money and leave, or what did he do? A. Well, after I opened the drawer and he commanded me to lie down--of course he cleaned out the money drawer with the exception of a few pennies and nickels and made his escape--went on about his business. I was on the floor, and I wasn't in no hurry to get up and take a chance.

Q. Was he masked? A. No; he wasn't masked. He had a growth of beard on his face."

He gave no details more than thus stated above, and did not undertake to describe the robber who relieved the cash drawer of the money. We regard his story of the robbery one of the most damaging bits of evidence against him, and we conclude that the evidence was sufficient to carry the case to the...