Morrow v. Commonwealth

• Decision Date: 18 February 1914
• Citation: 157 Ky. 486,163 S.W. 452
• Parties: MORROW v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

163 S.W. 452

157 Ky. 486

MORROW v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 18, 1914

Appeal from Circuit Court, Daviess County.

James E. Morrow was convicted of embezzlement, and he appeals. Affirmed.

La Vega Clements and Little & Slack, all of Owensboro, for appellant.

James Garnett, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

CLAY C.

Defendant James E. Morrow, was convicted of embezzlement, and he appeals.

Briefly stated, the facts are as follows: Some two years prior to the 15th day of April, 1913, defendant was the general manager of the Owensboro Home Telephone & Telegraph Company at Owensboro, Ky. As such it was his duty, among other things to collect tolls, fees, and charges from the company's subscribers and others doing business with it, and to make settlements with the company for the amounts so collected. In April, 1913, the auditor of the company went to Owensboro to check up defendant's accounts. Defendant informed him as to the condition of his accounts. On checking up the books it was found that defendant had appropriated to his own use the sum of $836.22, made up of different items collected at different times. When the case was called for trial defendant admitted taking and using the money, but defended on the sole ground that he simply borrowed the money and intended to pay it back. In support of this defense, it is shown that defendant left a memorandum giving the amounts collected, the names of the persons from whom collected, and the amounts withdrawn and used by him.

The first error relied on is that the indictment does not sufficiently allege that the money embezzled belonged to the Owensboro Home Telephone & Telegraph Company. After alleging that defendant was an employé of the Owensboro Home Telephone & Telegraph Company, and that the company was a corporation then and there existing under the laws of the commonwealth of Kentucky, and that the defendant, being the general manager at Owensboro of said corporation, did unlawfully, feloniously, and fraudulently convert to his own use $836.22 in lawful money of the United States, the exact character and description of which was unknown to the grand jury, the indictment concludes as follows: "And which said money being thus appropriated had been collected by the defendant for and on behalf of the Owensboro Home Telephone & Telegraph Company, and which said money came to the hands of said defendant as an employé of said corporation, and which said money was intrusted by said corporation to said defendant, who was a servant in the employ of said corporation at the time."

While it is true that the indictment does not use the word "belonged," we conclude that the allegation that the money appropriated by the defendant "had been collected by the defendant for and on behalf of the Owensboro Home Telephone & Telegraph Company," accompanied by the further allegation that the money came to the defendant's hands as an employé of said corporation, and was intrusted to him by said corporation, is sufficient to show ownership by the corporation, and to leave no doubt that the money which he appropriated was in fact the money of the corporation. The demurrer to the indictment was therefore properly overruled.

On the calling of the case, defendant asked for a bill of...