Morse v. Commonwealth

• Decision Date: 17 June 1908
• Citation: 111 S.W. 714,129 Ky. 294
• Parties: MORSE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

111 S.W. 714

129 Ky. 294

MORSE v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 17, 1908

Appeal from Circuit Court, Kenton County.

"To be officially reported."

P. H Morse was convicted of embezzlement, and he appeals. Affirmed.

Hobson J., dissenting in part.

B. F Graziani, for appellant.

James Breathitt and Tom B. McGregor, for the Commonwealth.

CARROLL J.

The appellant was indicted under section 1202 of the Kentucky Statutes of 1903, providing in part that: "If any officer, agent, clerk or servant of any bank or corporation shall embezzle or fraudulently convert to his own use or the use of another, money *** belonging to such bank or corporation *** which shall have come into his possession *** as such officer, agent, clerk or servant, *** he shall be confined in the penitentiary for not less than one nor more than ten years." The indictment charged that appellant, who was indicted as Homer Marion, alias Homer Morris, alias P. Homer Morse, while acting as the agent of the Consumers' Distilling Company, a corporation under the laws of Kentucky, had by virtue of his agency collected and received $59.95 from Henry Staggenburg for whisky sold and to be delivered, and did unlawfully, fraudulently, and without the consent of the Consumers' Distilling Company embezzle and convert to his own use the said sum of money, with the fraudulent and felonious intent then and there to convert the same to his own use, and to permanently deprive the company of its property therein. Upon a trial under this indictment, he was convicted, and his punishment fixed at two years' confinement in the state penitentiary. We are asked to reverse the judgment of conviction chiefly because the court erred in the admission and rejection of evidence and also for error in the instructions given to the jury.

A brief statement of the facts will aid in understanding the force of the objections raised. The Consumers' Distilling Company is a Kentucky corporation, with its principal place of business located at Louisville. It was engaged in the manufacture of whisky and the sale of it direct to the saloon trade.

The whisky sold was in bonded warehouses. Its sales were made by agents who delivered to purchasers warehouse certificates for the amount of whisky they desired to buy. These warehouse receipts specified the serial numbers of the barrels of whisky the purchaser bought, which was deliverable to bearer upon the payment of the purchase price, tax, and other charges. Appellant was employed by the company to solicit trade and was furnished a supply of blank warehouse receipts and sale order blanks. He was not personally known to the company, but was employed by it upon the recommendation of his cousin, Bradford Morse, who had been acting as its agent in the territory assigned to the appellant after Bradford Morse quit its employment. These agents were not authorized to collect money on sales made, but were authorized to receive from the purchaser their commission upon sales, which was 5 per cent. Appellant made sales to H. P. Murphy and H. C. Davis, and from these persons he collected more than his commissions, but remitted to the company the amount collected from them less commissions. He did not remit any money collected from other persons, or send in any other orders, or notify the company of any other sales.

Henry Staggenburg testified that he was a saloon keeper in Covington, and that on July 22, 1907, a man named Homer Marion came to his place of business with samples of whisky, order blanks, and certificates, and that he bought from him three five-barrel certificates, for which he paid him at the time $29.95 and in about a week afterwards $30 more. He identified the appellant, Morse, as being the person who sold him the whisky under the name of Homer Marion, and also produced the receipts signed by Homer Marion. The warehouse receipts delivered by Homer Marion, alias P. H. Morse, recited, in substance, that the Consumers' Distilling Company had sold to Staggenburg 15 barrels of whisky in a bonded warehouse, naming it, which it agreed to deliver to him on the payment of the United States government tax, and other taxes and storage, and the price at which the whisky was sold. The total amount of the purchase was $126.65. Upon the trial, persons by the name of Hennessy, Dennis, Sidler, and Schutte were introduced as witnesses for the commonwealth. Each of them was permitted to state, over the objection of appellant, that while representing himself to be Homer Marion, and an agent for the Consumers' Distilling Company, appellant sold to them warehouse receipts for whisky in bond and collected from each of them a part of the purchase price. They positively identified the accused as the person who sold them the whisky and collected from them the money under the name of Homer Marion, and were permitted to relate all the details of the transaction each of them had with him. The treasurer of the Central Savings Bank & Trust Company also identified the accused as representing himself to be Homer Marion when he cashed the checks given to him by Staggenburg. Other witnesses were introduced who identified the appellant as having transactions with them under the name of Homer Morris, and yet others who knew him when he was going under the name of E. B. Morse. The president of the company testified that he employed the accused upon the recommendation of his cousin, Bradford Morse, to act as agent in his place during his absence from the state; that he had never seen the accused until after his arrest; that agents of the company were not authorized to collect from persons to whom whisky was sold any part of the purchase price except their commissions; and that no report was made to the company by the accused of whisky sold to Staggenburg, Hennessy, Dennis, Sidler, or Schutte, nor did he remit to it any money on account of sales to these parties.

The appellant, when introduced as a witness in his own behalf, testified that he had acted as agent for the Consumers' Distilling Company for a short while, and during the time had sold whisky to Murphy and Davis, but had not sold or attempted to sell any whisky to either Staggenburg, Hennessy, Dennis, Sidler, or Schutte; nor had he collected from them any money. He attempted in the course of his examination to place these transactions upon Bradford Morse, and denied that he ever assumed the name of Homer Marion, or Homer Morris, but admitted that at one time he had assumed the name of E. B. Morse. Over his objection, the commonwealth was permitted to ask him if he had not been indicted and convicted in the federal court as E. B. Morse for a fraudulent use of the mails. He was also required to state that as E. B. Morse he had rented property some years before the trial from a man named Rolsen, and was also interrogated concerning other incidents in his life that had no bearing upon the offense he was charged with, except to show that at various times he had assumed different names. The defense of appellant was rested entirely upon the fact that the crime he was charged with was committed by Bradford Morse. In other words, that the commonwealth had instituted the prosecution against the wrong person.

The first question presented is the competency of the evidence of Hennessy, Dennis, Sidler, and Schutte. The trial court admitted the evidence of these persons for the purpose of showing a criminal intent upon the part of the accused, and admonished the jury that this was the only purpose for which their testimony was received. Considering the defense interposed by appellant, we are of the opinion that, although the evidence was competent, the reason for its admission given by the trial judge was erroneous. It was relevant and admissible for the purpose of establishing the identify of the accused but not, as we will presently show, for the purpose of showing a criminal intent upon his part. The grounds upon which it was admitted are not, however, material. It was competent evidence, and the appellant was not prejudiced by the erroneous reason assigned by the lower court. The accused denied that he had ever assumed the names of Homer Marion, or Homer Morris, and that he had any transactions with Staggenburg. It was therefore competent to prove not only by Staggenburg, but by the other witnesses who about the same time knew him or had similar transactions with him, that in dealing with them he represented himself to be Homer Marion, and to prove by them that appellant was the identical person whom they knew as Homer Marion. This evidence might have been made by as many persons as were able to identify him without reference to whether they had business transactions with him or not. In the examination of these witnesses for the purpose of fully identifying the accused, it was also permissible to allow them to relate the circumstances under which they knew him and the business transactions they had with him. In addition to this, and as a corroborative and relevant fact tending to show that the accused had assumed the name of Homer Marion, it was competent to prove that he had assumed other names, and that under another name he had been indicted and convicted in the federal court. When the defense of a person is that it was not himself, but another, who committed the crime, the evidence in behalf of the commonwealth may be permitted to take a wide range for the purpose of developing the past life and history of the accused and the names he has assumed, to the end that he may be identified under those assumed names as the person who committed the offense under investigation; but if, in the course of the evidence brought out in the elucidation of these facts, it should appear that the accused had been guilty of...