Sergent v. Commonwealth

• Decision Date: 01 February 1935
• Citation: 257 Ky. 567
• Parties: Sergent v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

257 Ky. 567

Sergent v. Commonwealth.

Court of Appeals of Kentucky.

Decided February 1, 1935.

1. Indictment and Information. — Indictment for embezzlement against county clerk alleging that offense was committed on

February 2, 1932, held not defective, where defendant had not been county clerk since 1925, since time was not material ingredient and all that was necessary was that it appeared that offense was committed before finding of indictment (Criminal Code of Practice, sec. 129).

2. Indictment and Information. — Indictment for embezzlement returned on February 3, 1932, averring that offense was committed on February 2, 1932, held sufficient as importing commission of offense prior to date of filing indictment (Criminal Code of Practice, sec. 129).

3. Indictment and Information. — Indictment containing general accusation of embezzlement followed by statement of acts showing with particularity precise nature and kind of embezzlement charged held not defective for uncertainty (Criminal Code of Practice, sec. 124; Ky. Stats., sec. 1205).

4. Embezzlement. — County clerk wrongfully and fraudulently converting money belonging to county to his own use, with intent to deprive county thereof, would be guilty of embezzlement, even though he might have intended at some future time to restore, and did restore, money (Ky. Stats., sec. 1205).

5. Embezzlement. — Evidence as to county clerk's intent in retaining money belonging to county held to sustain conviction of embezzlement, though he kept accurate record of all collections, always admitted receiving money, county owed him more money, and he finally paid county all that he owed it, where he had duty to make prompt settlement, permitted judgment against himself in action on his bond without pleading county warrants as counterclaim, and did not make settlement until after he had been sued and subsequently indicted (Ky. Stats., secs. 1205, 4151-2).

6. Criminal Law. — In embezzlement prosecution against county clerk, who was allowed interest on county warrants in settlement with county, defendant could not complain of alleged error in telling jury that county warrant or voucher did not bear interest until it was presented to county treasurer and payment demanded and it had been stamped interest-bearing, where defendant failed to object to question whether vouchers had been presented to county treasurer or to court's admonition (Ky. Stats., sec. 1205).

7. Criminal Law. — In embezzlement prosecution against county clerk, instruction substantially in language of statute that, if jury had reasonable doubt that defendant had been proven guilty, they should find him not guilty, held not erroneous (Criminal Code of Practice, sec. 238; Ky. Stats., sec. 1205).

8. Criminal Law. — In embezzlement prosecution against county clerk, instruction giving facts relied on by defendant as authorizing acquittal held properly refused, where instruction failed to submit question of intent (Ky. Stats., sec. 1205).

Instruction requested told jury in substance that, if defendant had valid claims which he had taken up for the money he had received, and which were payable at such time by county, and which he in good faith put before county authorities, allowing them to know in substance what he had on hand so collected, and that he was willing at all times to settle all sums, and had in fact paid to the county as much or more than was due, he acted in good faith with respect thereto, and was not guilty.

Appeal from Letcher Circuit Court.

H.C. FAULKNER and JOHN D.W. COLLINS for appellant.

BAILEY P. WOOTTON, Attorney General, and DAVID C. WALLS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE CLAY.

Affirming.

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...