Richard V. Wood v. Commonwealth

• Decision Date: 14 May 1929
• Citation: 229 Ky. 452
• Parties: Richard V. Wood v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

229 Ky. 452

Richard V. Wood v. Commonwealth.

Court of Appeals of Kentucky. Criminal Division.

Decided May 14, 1929.

1. Embezzlement. — Ky. Stats., sec. 1358a, which is Act March 21, 1902, making it unlawful to fradulently dispose of property of another, held not repealed by section 1358b, which is Act March 24, 1908, making it misdemeanor to sell or transfer personal property, where possession is in one person and title in another, but the two acts are to be read together, and later one is applicable only to cases not coming within earlier.

2. Statutes. — Repeal by implication is not favored, and later act will not be adjudged to repeal prior act, unless it is impossible to permit both to stand.

3. Embezzlement. — In prosecution, under Ky. Stats., sec. 1358a, for converting property of value more than $20 without owner's consent, indictment charging unlawful, fraudulent, and felonious conversion of bonds, which were in form of temporary certificates, but exchanged for permanent certificates while under defendant's control, held not demurrable under Criminal Code of Practice, sec. 122.

4. Embezzlement. — In prosecution, under Ky. Stats., sec. 1358a, for converting property of value more than $20 without owner's consent, there was no fatal variance between indictment and proof as to conversion of bonds by broker.

5. Criminal Law. — In prosecution under Ky. Stats., sec. 1358a, for converting property of value more than $20 without owner's consent, refusal of continuance for absence of witness who was sick held prejudicial error, in view of final argument of commonwealth attorney and fact that witness was man who actually conducted transaction in controversy.

6. Criminal Law. — Where, on application for continuance for absence of witness, commonwealth allowed affidavit to be read as deposition of witness, argument by commonwealth attorney that such witness would have testified, if there, to other things not stated in affidavit, held improper.

Appeal from Jefferson Circuit Court

ARTHUR B. BENSINGER, JAMES P. EDWARDS, TRABUE, DOOLAN, HELM & HELM and BOOTH & CONNER for appellant.

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

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Reversing.

On March 2, 1928, George T. Wood and Richard V. Wood were indicted in the Jefferson circuit court, under section 1358a, Kentucky Statutes, for the crime of fraudulently converting to their own use property of value more than $20 without the consent of the owner. They moved for a separate trial. The commonwealth elected to try Richard V. Wood. The trial resulted in a conviction and the fixing of his punishment at imprisonment for four years. He appeals.

The first question presented is, was section 1358a, Kentucky Statutes, which is the act of March 21, 1902, repealed by section 1358b, Kentucky Statutes, which is the act of March 24, 1908? The act of 1902 is in these words:

"An act to make it unlawful for a person to fraudulently dispose of the property of another, and to provide a punishment therefor.

"Be it enacted by the General Assembly of the Commonwealth of Kentucky:

"Section 1. 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." Acts 1902, p. 151.

The act was before this court for construction in Commonwealth v. Barney, 115 Ky. 475, 74 S.W. 181, 24 Ky. Law Rep. 2352. It was there held that the previous statutes did not include agents and fiduciaries having charge of the property of another who converted it to their own use, and that the act was intended to apply to these fiduciaries who were not included under the previous acts, and that it only applied to persons holding the property in a fiducial capacity. It was there also held that the word "fraudulently," which was used in the title of the act, must be read into the body of the act, although not used there, and that the act was only intended to punish the fraudulent conversion of the property of another by a fiduciary. This opinion was delivered at the April term, 1903, and was followed in Com. v. Kelley, 125 Ky. 245, 101 S.W. 315, 30 Ky. Law Rep. 1293, 15 Ann. Cas. 573, decided April 10, 1907. In this condition of things the Act of March 24, 1908, was passed, and is in these words:

"An Act to prevent the sale or transfer of Personal Property where the possession is in one person and the Title thereto is vested in another.

"Be it enacted by the General Assembly of the Commonwealth of Kentucky:

"1. It shall be unlawful for any person having the possession of personal property, the title to which is vested in another to sell or otherwise dispose of such property without the written consent of the person in whom the title is vested. Any person guilty of such offense shall be fined not less than One Hundred Dollars, nor more than Five Hundred Dollars for each offense. Any person having notice of the manner in which such property is held, who shall purchase it of the person having the possession thereof, or of any person, without the written consent of the person in whom the title is vested, shall be fined not less than One Hundred Dollars, nor more than One Thousand Dollars for each offense.

"2. An emergency exists for the immediate operation of this law, therefore, the same shall be in force from and after its enactment.

"Approved March 24, 1908." Acts 1908, p. 40.

It will be observed that this act creates only a misdemeanor. The offense is committed when any person, having possession of personal property, the title to which is invested in another, shall sell or otherwise dispose of such property without the written consent of the person in whom the title is vested. The act of 1902 only applies to fiduciaries having the possession of the property of another. It does not apply to other persons than fiduciaries. The act of 1908 applies to persons who are not fiduciaries. The act of 1902 only punishes the fraudulent conversion of the property of another by the fiduciary to his own use. The act of 1908 punishes the sale or other disposition of the property of another without the written consent of the person in whom the title was vested. The act of 1902 punishes the fraudulent conversion of the property without the consent of the owner. The act of 1908 punishes the sale or disposition of the property without the written consent of the title holder. The two acts are to be read together. Repeal by implication is not favored, and a second act will not be adjudged to repeal a prior act, except it be impossible to permit both statutes to stand. If by fair and reasonable interpretation both acts may be upheld, the latter act will not be regarded as repealing the former by implication. Thomas v. Hurst Home Ins. Co., 186 Ky. 178, 216 S.W. 368; Exall v. Holland, 166 Ky. 315, 179 S.W. 241; State Board of Charities, etc., v. Hays, 190 Ky. 147, 227 S.W. 282; City of Newport v. Klatch, 189 Ky. 305, 224 S.W. 844; Thomas v. McCain, 189 Ky. 373, 224 S.W. 1055.

As was held in Commonwealth v. Barney, 115 Ky. 477, 74 S.W. 181, 24 Ky. Law Rep. 2352, the act of 1902 must be regarded as applicable only to those cases coming within its terms which were not covered by the previous statutes; so the act of 1908 must be held as applicable only to those...