Miller v. Commonwealth

• Decision Date: 22 January 1932
• Citation: 242 Ky. 122
• Parties: Miller v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

242 Ky. 122

Miller v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 22, 1932.

1. Criminal Law. — To give instruction based on evidence which constitutes variance between offense alleged and one proved is error (Ky. Stats., sec. 597).

2. Criminal Law. — Prosecutor's inflammatory and unsupported assertion that accused was guilty of specific crimes other than the one charged in indictment held reversible error (Ky. Stats., sec. 597).

3. Banks and Banking. — Proof that director or officer of insolvent bank accepted deposit from corporation of which one person owned all the stock was fatal variance, where indictment charged acceptance of deposit from such person (Ky. Stats., sec. 597).

Appeal from Rockcastle Circuit Court.

C.C. WILLIAMS and J.C. BIRD for appellant.

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

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

The appellant and defendant below, R.H. Miller, and others, were indicted in the Rockcastle circuit court, in which they were accused of the offense of assenting to and receiving deposits of money by patrons of the People's Bank of Mt. Vernon, Ky., of which defendants were directors and officers, and at a time when the bank was insolvent and defendants knew it. The particular deposit upon which the indictment was founded was alleged therein to have been made on April 21, 1930, by J.F. Dees in an amount of $87.05. On his separate trial, defendant was convicted and given the maximum punishment provided by law, which is ten years' confinement in the penitentiary. The statute creating the offense and fixing the punishment therefor is section 597 of the 1930 Edition of Carroll's Kentucky Statutes and was enacted in 1893, being section 60 of chapter 171, page 612, of the Session Acts of that year. On this appeal but two arguments are made for a reversal of judgment, and which are: (1) Improper and prejudicial remarks of prosecuting counsel in his argument to the jury; and (2) fatal variance between the allegations of the indictment and the testimony, each of which will be considered and determined in the order named. But before doing so, we deem it proper to say that none of the other errors relied on in the motion and grounds for a new trial are available for that purpose, since we regard them as without merit, and they were so determined in the recent case of the same appellant (R.H. Miller) against the commonwealth, decided by this court November 24, 1931, and published in 241 Ky. 221, 43 S.W. (2d) 687, 689.

It might also be stated at this juncture that instruction No. 6 given by the court is complained of upon the ground that it is based on the evidence which it is contended constituted the variance as a basis for argument (2), and, since we have concluded that it is meritorious, it follows that the giving of instruction No. 6 was error, and should not be given.

The statements made by prosecuting counsel forming the basis of argument (1) was in these words: "The fact that the defendant was a director required him to know, and he did know, the bank was insolvent when he received this deposit. While these poor people were carrying their money in at the front door these thieves were carrying it out at the back door. If you acquit this defendant, I hope you will lose every cent you may have in bank before Saturday night. Write your verdict of guilty across the skies like a banner and teach such thieves and other like thieves, that they cannot steal the people's money." Practically the same language, in substance and effect, made the sole error (for which the judgment of conviction was reversed) in the recent case of Miller v. Commonwealth, supra, but we will not incorporate it in this opinion, but refer to it for that information.

In condemning it we said therein:

"The purpose of the language, as well as its natural effect, was to arouse the passions and prejudices of the jurors, and make them feel that appellant's derelictions other than the one for which he was tried would justify a verdict of guilty. But counsel did not stop there. He went further and asked a conviction on the ground that, if the crime had been committed in some communities, outraged and plundered citizens would have hanged appellant, thus making the jury feel that any punishment that they might inflict would be mild in comparison with what other communities would do, and would fall far short of the requirements of outraged justice. In using this language not only did counsel go outside of the record, but the language itself was so abusive and inflammatory as to take away from the jurors that poise of mind so essential to a fair and impartial trial."

The complained of language employed by the prosecutor in that case was no more inflammatory or abusive or inimical to an impartial trial than is the complained of language in this case.

In the case of Jones v. Commonwealth, 191 Ky. 485, 231 S.W. 31, 33, in condemning unfair and prejudicial conduct of prosecutors, we employed this language:

"The chief purpose in the conduct of trials is, or should be, to see that justice as near as may be, shall prevail. This can never be accomplished by the injection of misleading matters into the record, either directly or indirectly; for the temple of justice has for...