Runyon v. Commonwealth

• Decision Date: 01 June 1926
• Parties: RUNYON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

286 S.W. 1076

215 Ky. 689

RUNYON v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 1, 1926

Rehearing Denied with Modification Oct. 26, 1926.

Appeal from Circuit Court, Pike County.

R. C Runyon was convicted of embezzlement, and he appeals. Affirmed.

J. C Cantrell, of Stone, and Roscoe Vanover, of Pikeville, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

McCANDLESS J.

On an indictment for embezzlement charging him with the fraudulent conversion of $200, the property of the Sudduth Fuel Company a corporation, R. C. Runyon was convicted and sentenced to confinement in the state penitentiary for a period of one year and one day.

The evidence for the commonwealth tends to show that the defendant was pay roll clerk of the Sudduth Fuel Company, and as such was authorized to draw checks on its banking account; that while so acting he drew a certain check in the sum of $200 in favor of J. A. Blackburn, which was duly indorsed and collected by Blackburn; that at the time the company was not indebted to Blackburn or to Mel Varney in any sum, but that the check was presented to Blackburn by Mel Varney, who owed him an account for $92, which Blackburn credited, giving Varney currency for the excess; that shortly afterward Runyon fled the state, but was apprehended, brought back, and confessed to the officers of the bank that he had lost this sum in gambling with Varney and gave him this check in payment of the gambling debt. Defendant did not testify.

It is first urged that the indictment is insufficient in not alleging that the money charged to have been embezzled was intrusted to R. C. Runyon by the Sudduth Fuel Company as its agent. However, this is untenable, as it does charge that:

Runyon was "then and there an officer, agent, clerk, and servant of the Sudduth Fuel Company, * * * and did unlawfully, fraudulently, and without the consent of the said Sudduth Fuel Company convert to the use of the said Mel Varney the sum of $200 in good and lawful money of the United States, the personal property of the said Sudduth Fuel Company, a corporation, the proceeds of a check drawn on the First National Bank of Stone, Ky. by the Sudduth Fuel Company, by R. C. Runyon, in favor of J. A. Blackburn, which said sum of money had then and there been intrusted to the care, custody, keeping, and under the management of the said R. C. Runyon by virtue of said relationship of officer, agent, clerk, and servant existing as aforesaid."

Clearly the indictment is sufficient in this respect.

2. There is no proof in the record tending in the remotest degree to show that the Sudduth Fuel Company is a corporation, and, as the indictment was drawn under section 1202, Kentucky Statutes, which applies only to embezzlement on the part of officers and agents of banks and corporations, in order to sustain a conviction for this offense, it must be alleged and proven that the injured party is either a bank or a corporation. Morse v. Com., 129 Ky. 310, 111 S.W. 714, 33 Ky. Law Rep. 831, 894. True, we have held that a railroad company will be presumed to be a corporation ( M. H. & E. R. R. Co. v. Com., 140 Ky. 256, 130 S.W. 1084); otherwise the fact of incorporation may be proven by parol (Swann v. Com., 169 Ky. 565, 184 S.W. 868), or by evidence that it is acting as a corporation, such as printed billheads, letter heads, etc. (Standard Oil Co. v. Com., 122 Ky. 440, 91 S.W. 1128, 29 Ky. Law Rep. 5). But we have never gone to the extent of dispensing with such proof of incorporation except in cases of railways, as such companies cannot exercise the rights of eminent domain otherwise, and in the case of banks, as they fall within the terms of this section, and also as they must be incorporated in order to do business. It follows that the proof was insufficient in this respect to sustain a conviction on the principal charge.

3. However, section 1358a, Ky. St., provides:

"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."

As construed by this court this section embraces all cases of fraudulent conversion of funds belonging to individuals by agents, employees or persons acting in a fiducial capacity which were formerly denominated breaches of trust and not indictable under other embezzlement statutes. Com. v. Barney, 115 Ky. 475, 74 S.W. 181, 24 Ky. Law Rep. 2352.

It is also provided by the Criminal Code:

"Upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment." Section 262.

"If an offense be charged in an indictment to have been committed with particular circumstances, as to time, place, person, property, value, motive, or intention, the offense without the circumstances, or with part only, is included in the offense, although that charge may be a felony, and the offense, without the circumstances, a misdemeanor only." Section 264.

In construing these sections it has been held that the common-law offense of assault and...