Sergent v. Com.

• Decision Date: 01 February 1935
• Parties: SERGENT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

78 S.W.2d 795

257 Ky. 567

SERGENT v. COMMONWEALTH.

Court of Appeals of Kentucky

February 1, 1935

Appeal from Circuit Court, Letcher County.

Archie V. Sergent was convicted of embezzlement, and he appeals.

Affirmed.

H. C Faulkner, of Hazard, and John D. W. Collins, of Whitesburg for appellant.

Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.

CLAY Chief Justice.

Archie V. Sergent appeals from a judgment convicting him of embezzlement, and fixing his punishment at two years' imprisonment.

Briefly the facts are: Sergent was county clerk of Letcher county during the years 1922, 1923, 1924, and 1925. During that time, as was his duty, he collected various sums paid by the owners to redeem their lands from tax sales. When the money was received, he did not pay over to the county its share. Later on he did settle for the years 1922 and 1923. Though the matter was frequently brought to his attention, he made no settlement for the years 1924 and 1925. On July 27, 1929, the county brought suit against Sergent and his sureties to recover the sum of $662.58. Sergent did not answer, but separate answers were filed by the sureties. By agreement of the parties, the cause was heard and tried by the court on December 7, 1932, and judgment rendered against Sergent in the sum of $429.35. On January 25, 1933, a settlement was reached between Sergent and the county acting through its fiscal court. At that time Sergent had county warrants aggregating $591.60, and the accrued interest thereon to the date of settlement amounted to $250.40, making a total of $842. At that time the judgment in favor of the county, together with interest, amounted to $648.25. The difference between the two amounts was $193.75, and the matter was settled by execution of an additional warrant to Sergent. According to Sergent, he never intended to appropriate any of the taxes collected to his own use. On the contrary, he had taken in the county warrants for fees, and some of them in redemption of the lands sold for taxes, and was ready at all times to settle with the county.

The indictment is not defective on the ground that it alleged that the offense was committed on February 2, 1932, whereas Sergent was not county clerk at the time and had not been county clerk since the year 1925. In the case of a felony like embezzlement, time is not a material ingredient, and all that is necessary is that it shall appear that the offense was committed before the finding of the indictment. Section 129, Criminal Code of Practice. Though the indictment did not allege that the offense was committed before the finding of the indictment, the indictment was returned on February 3, 1932, and stated that the offense was committed on February 2, 1932. The averment imported the commission of the offense prior to the date when the indictment was filed, and was therefore sufficient. Vowells v. Commonwealth, 84 Ky. 52; Morgan v. Commonwealth, 172 Ky. 684, 189 S.W. 943.

The indictment is also assailed on the ground that the accusatory part of the indictment is not certain as to the offense charged, and the indictment is therefore defective under the rule laid down in Deaton & Boggs v. Commonwealth, 220 Ky. 343, 295 S.W. 167, and Elliott v. Commonwealth, 194 Ky. 576, 240 S.W. 61. The argument is that there are several different kinds of embezzlement as shown by the statutes, and that to accuse one generally of embezzlement without specifying the kind is not a compliance with the Criminal Code of Practice that the indictment must be direct and certain as to the offense charged (section 124). The argument is pressed with great ability, but we think that a general accusation of embezzlement is sufficient when followed in the body of the indictment by a statement of the acts showing with particularity the precise nature and kind of embezzlement with which the defendant is charged.

Another contention is that appellant was entitled to a peremptory instruction. In support of this position, the argument is that appellant kept an accurate record of all collections and always admitted receiving the money; that, though he withheld the money of the county, the county owed him more at the time, and he paid the county all that he owed it, and that there is nothing in the entire record tending to show that he intended to convert the money to his own use or to deprive the county thereof. If appellant wrongfully and fraudulently converted the money to his own use with intent to deprive the county thereof, he was guilty under the statute, section 1205, Kentucky Statutes, even though he may have intended at some time in the future to restore, and did restore, the money. Morrow v. Commonwealth, 157 Ky. 486, 163 S.W. 452; National Life & Accident Ins. Co. v. Gibson, 101 S.W. 895, 31 Ky. Law Rep. 101, 12 L. R. A. (N. S.) 717; Metropolitan Life Ins. Co. v. Miller, 114 Ky. 754, 71 S.W. 921, 24 Ky. Law Rep. 1561. Intent is rarely declared, and must...