Rogers v. Commonwealth

• Decision Date: 17 November 1936
• Citation: 98 S.W.2d 496,266 Ky. 220
• Parties: ROGERS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

98 S.W.2d 496

266 Ky. 220

ROGERS v. COMMONWEALTH.

Court of Appeals of Kentucky

November 17, 1936

Appeal from Circuit Court, Daviess County.

Charles A. Rogers was convicted of embezzlement, and he appeals.

Affirmed.

Louis I. Igleheart, of Owensboro, for appellant.

B. M Vincent, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for the Commonwealth.

STANLEY Commissioner.

The appellant, Charles A. Rogers, seeks a reversal of his conviction of the crime of embezzlement on which he has been sentenced to the penitentiary for one year. Two similar judgments against him have heretofore been affirmed. Rogers v. Commonwealth, 264 Ky. 187, 94 S.W.2d 345; Rogers v. Commonwealth, 264 Ky. 220, 94 S.W.2d 661.

The charge upon which Rogers was tried in this case is that while he was acting as the city tax collector of Owensboro he embezzled $170.85, received by him in payment of taxes by the trustee in bankruptcy of Graf's, Inc. In December, 1932 that corporation was owing taxes for the years 1931 and 1932. The check of the trustee for $381.70 was received by the defendant on January 31, 1933. Under the advice that the payments should be divided and applied in satisfaction of taxes for the two years, he duly entered $170.85 on the cash book and regularly accounted for it. The other half, representing delinquent taxes, was entered on the stub of the tax receipt book by an indorsement dictated or drawn by the city attorney. Apparently this was because the amount was less than the bill. The method of bookkeeping, according to the assistant tax collector, did not call for entering delinquent tax collections on the current cash book. They were accounted for in a different way. The check for $381.70 was included in the bank deposits of that day. The evidence makes it manifest, however, that the $170.85 collected on the 1931 tax bill was never charged by the defendant to himself anywhere, and was never included in any settlement. His practice seems to have been that which he followed in embezzling funds of the electric and waterworks department of the city, covered by the case reported in 264 Ky. 220, 94 S.W.2d 661. According to the records, the defendant habitually carried large sums of money on hand, and in this instance he took out cash to the amount of $170.85, thus the deposits in the bank equalled the amount shown on the cash book.

The defendant testified that the check was turned over to his assistant, who had charge of tax collections. She made all the entries pertaining to it. At the close of the day it was turned over to him with other collections, and he deposited the money to the credit of the city.

It is insisted that the testimony of the accountant not only fails to prove any embezzlement of this money, but shows some excess in deposits over receipts for the month of January, 1933. But the accountants explained the discrepancy by disclosing the large amount of checks and cash not deposited, the same being $41,910.59 at the end of January, 1933. The jury was fully justified in rejecting the defendant's attempted explanation and in accepting the evidence of the Commonwealth.

Other than the ground of a failure of proof of guilt, the appellant maintains that he was entitled to a peremptory instruction because, in order to make out a case, it was necessary for the Commonwealth to prove that the property of Graf's Inc., was located in the city of Owensboro, and had been assessed for taxation, and such proof was not made. He relies on Commonwealth v. Baske, 124 Ky. 468, 99 S.W. 316, 30 Ky.Law Rep. 400, 11 L.R.A. (N.S.) 1104; Commonwealth v. Alexander, 129 Ky. 429, 112 S.W. 586, 33 Ky.Law Rep. 971, and Mason v. Cook, 187 Ky. 260, 218 S.W. 740. In both of those Commonwealth cases a sheriff had collected money from taxpayers for which no assessment had been made. Because that money did not belong to the county or state but to the persons who had paid the sheriff, it was held that he could not be convicted of embezzling it from the state or county. The Mason Case involved claims of nonliability by sureties on a sheriff's bond. The opinion drew a distinction between it and the two Commonwealth cases, and held the sureties liable as the money collected had come into the sheriff's hands under color of his office. Likewise, in Fidelity & Deposit Co. v. Commonwealth, 249 Ky. 170, 60 S.W.2d 345, 346,...