Snapp v. Commonwealth

• Decision Date: 14 June 1884
• Citation: 6 Ky.L.Rptr. 34,82 Ky. 173
• Parties: Snapp v. The Commonwealth.
• Court: Kentucky Court of Appeals

82 Ky. 173

6 Ky.L.Rptr. 34

Snapp v. The Commonwealth.

Court of Appeals of Kentucky.

June 14, 1884

1. Ferguson was back tax collector for the city of Louisville. Appellant was his clerk and cashier upon his employment. Held:

2. That whatever moneys came into the hands of the principal or his clerk in the discharge of their duties, came lawfully into the hands of both, and having the right to receive the money appellant can not be held to have committed a felony.

3. Where one comes into possession of money or property lawfully, he can not become guilty of larceny by afterwards converting it to his own use.

4. Appellant was not an officer of the city of Louisville; he was Ferguson's clerk, and bound to account to him alone.

5. Although where several felonies are parts of the same transaction, evidence of all is admissible on the trial of an indictment for one; yet the rule does not apply to a case like this, where a charge of larceny alleged to have been committed on one day is attempted to be established by proof of another larceny committed on a different day.

6. Evidence of appellant's extravagant habits; or of expenditures beyond his salary, is incompetent.

APPEAL FROM JEFFERSON CIRCUIT COURT.

YOUNG &amp TRABUE, P. B. MUIR, AND HENRY CLAY FOR APPELLANT.

No brief.

W HARDIN, ATTORNEY GENERAL, AND A. G. CARUTH COMMONWEALTH'S ATTORNEY, FOR APPELLEE.

No brief.

OPINION

PRYOR JUDGE:

The grand jury at the April term, 1883, of the Jefferson circuit court, returned an indictment against the appellant, Cope J Snapp, containing two counts; one for embezzlement and the other for grand larceny. He was convicted of grand larceny and has appealed to this court.

It was alleged in the one count that while acting as clerk for one David Ferguson, back tax collector of the city of Louisville, he had embezzled $342.87 cents of money belonging to the city, and in the other that he had feloniously taken and converted to his own use, the same amount and the same sum of money, and was, therefore, guilty of grand larceny. The money said to have been the subject of the larceny was paid to the appellant by Clemerson in a check on one of the Louisville banks in discharge of taxes due by one Newman. The prosecution and the defense both establish the fact that Ferguson was the back tax collector for the city from the month of April, 1881, to December, 1882, and it is a fact conceded, that during that period he was a defaulter to the city on account of moneys collected in a sum largely exceeding fifty thousand dollars. He was indicted for embezzlement, tried, and convicted of the offense, and finally released from prison by executive interference.

The appellant, Snapp, was the chief clerk and cashier of Ferguson, and from the testimony seems to have had almost the entire control of the office and the moneys collected. Ferguson received for his services a commission on the amount collected, and employed Snapp (the accused) as his private clerk out of his own means, paying him for his services seventy-five dollars per month. Under the law defining his duties as back tax collector, Ferguson was required to settle his accounts with the city treasurer and pay over the money collected by him at the end of each week, but this he neglected to do, and settled once in two or three weeks.

The reports of the treasurer evidencing the amount of money collected by him were usually, perhaps, always made out in the handwriting of the accused and signed by Ferguson.

There was in the office of Ferguson two books, called the ledger and cash book. In the one was inserted the names of those owing back taxes and the amount; also the amount paid by them, and in the other was the amount of cash received at various times from those paying it.

When money was paid tickets were made and placed with the cash in the cash drawer, and the money usually taken from the drawer and deposited in some one of the banks to Ferguson's credit. The safe in which the books were kept, and sometimes the money, as well as the office, was furnished by the city.

The appellant seems to have made the deposits generally, and the money, when required by Ferguson, was checked out on his order to be paid either to the city treasurer or those entitled.

Ferguson was at the Hot Springs from May 20, 1882, until the 10th of June of the same year, and during his absence it appears that one Newman was indebted to the city for taxes on his property for the years 1878, 1879, 1880, and 1881; for the two last years the money was going to the tax receiver of the city and not to the back tax collector. The entire amount of taxes due was paid by one Clemerson, in a single check, and this check delivered to the appellant, Snapp, who indorsed it and then delivered it to the clerk of the tax receiver. The bank where it was payable, cashed the check, and the tax receiver, or his clerk, retained the amount due him, and paid the balance to the appellant--that balance, $342.88, belonging to the back tax collector's office. All of this sum Snapp is proven to have accounted for except $169.45, the amount of Newman's taxes for the year 1879. This sum was not entered on the cash book or accounted for by Ferguson in his settlement with the city treasurer after his return home, nor has the city, so far as this record shows, ever received it.

The same day Snapp received this money ($342.88), he deposited in bank to Furguson's credit $550, and claims to have accounted to Ferguson for all the money received by him.

There was a plea of not guilty entered, and the burden was on the Commonwealth to show a felonious taking of this money and its conversion by the accused before he could be convicted of larceny.

The failure of either to account to the city for the money did not make either guilty of larceny. Ferguson's duty was to account to the city treasurer, and Snapp's duty was to account to his principal, Ferguson, and while the failure to account showed the one or the other, or both, to have been in default, still it made neither guilty of a felonious taking of the money belonging to the city.

The prosecution was permitted to prove in order to a conviction, that during the absence of Ferguson in the South, there had been paid into the office of the back tax collector at various times (the accused being in charge of it), the sum of six thousand dollars, and that nearly two thousand dollars of that sum had never reached the city treasury or been accounted for by Ferguson.

The appellant objected to the introduction of this testimony, and his objections were overruled, to which an exception was entered.

The prosecution, after issue formed between the accused and the State, undertook to convict the appellant of larceny in taking the $342, amount paid him of Clemerson's check in discharge of Newman's tax bill, and the testimony was directed to that specific charge. The issue was then distinctly made, and it devolved on the Commonwealth to show an unlawful taking of this money from the city by the accused with a felonious intent. Snapp was not an officer of the city, and was under no obligation to account to the city treasurer, nor would the latter have recognized him as the party with whom he was to make these weekly settlements.

It was Snapp's duty to account to Ferguson and to no one else. The Commonwealth had traced the money into the hands of the accused, who had the right to collect it and to pay it over under Ferguson's order. The money was properly paid over to him, and he alone, during Ferguson's absence, had the right to its custody. A conviction could not be had under the indictment for larceny unless the jury believed from the testimony that the accused had taken this particular money, or a part of it, from the city of Louisville with the felonious intent of depriving the city of its use. The money had been received without fraud, and as a matter of right, and in such a case, although he may have the animus furandi afterwards and convert it to his own use, he is not guilty of larceny.

There is no testimony in this case showing any felonious taking after the money had been lawfully received by the accused, unless the jury may infer a subsequent felonious taking from the previous conduct and history of the accused. The presumption in favor of the accused is: That he accounted to Ferguson for this money, and this presumption of innocence continues until facts establishing guilt appear, and when a failure to account is shown it does not constitute the crime of larceny. If this money had been deposited with the city treasurer and then abstracted by the accused, he would be guilty of larceny, or if paid over to Ferguson and by him deposited in his safe in his office, or by the appellant as his clerk, and the latter had then taken it with a felonious intent, he would be guilty of the offense of larceny from Ferguson, but not from the city.

Neither state of case is...