Swann v. Commonwealth

• Decision Date: 20 April 1916
• Citation: 169 Ky. 565,184 S.W. 868
• Parties: SWANN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

184 S.W. 868

169 Ky. 565

SWANN v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 20, 1916

Appeal from Circuit Court, Marion County.

Ed Swann was convicted of embezzlement, and he appeals. Affirmed.

Ben Spalding, of Lebanon, for appellant.

M. M Logan, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

CLARKE J.

Appellant was indicted, tried, and convicted under section 1202 of the Kentucky Statutes of embezzling money, the property of Lodge No. 53 of the "United Brothers of Friendship and Sisters of the Mysterious Ten for the State of Kentucky and its Jurisdiction," a Kentucky corporation, of which appellant was the treasurer.

Appellant insists that the commonwealth failed to prove that the society, whose property the embezzled funds were, was a corporation; and that, as it was necessary for this fact to have been proven, it was error in the trial court to refuse the peremptory instruction asked for by appellant.

This contention upon the part of appellant is based upon the assumption that the fact of incorporation could not be proven in any way other than by record evidence, but this is not the rule. In Morris v. Commonwealth, 129 Ky. 294, 111 S.W. 714, 33 Ky. Law Rep. 831, it was held by this court that the fact of incorporation can be proven by parol evidence, and authorities are cited therein fully supporting this rule. In the instant case, counsel for appellant on cross-examination asked the commonwealth's witness Walter Roberts the following question: "Now you say your institution is incorporated?" To which witness replied, "Yes, sir." This alone, if there had been no other evidence upon the question, was sufficient proof of the fact of incorporation. Moreover, this society was incorporated in 1868 by act of the Legislature of which judicial notice will be taken. L. & N. R. Co. v. Commonwealth, 154 Ky. 294, 157 S.W. 369.

Appellant next insists that there was no evidence showing that he had misappropriated any of the funds of said society; but we are unable to understand how, upon this record, such an assertion could have been made. The uncontradicted evidence shows that as treasurer it was appellant's duty to take charge of the receipts of the society at each meeting and deposit same in a certain bank to the credit of the society, from which they could be withdrawn only upon check of the society executed by the president and secretary. Appellant had no power to pay out or withdraw said funds from said bank in the absence of such authority, which was not given; and his duty as treasurer with reference to the funds committed to his care, as shown by the proof, consisted solely in taking charge thereof from the time of their receipt until they could be deposited to the credit of the society in the bank.

Appellant was treasurer from January 1 until October 13, 1914, during which time sums were turned over to him as treasurer aggregating $461.70, and during which time he deposited in the bank sums totaling only $300.30, showing that he had failed to deposit in the bank, and appropriated to his own use, the sum of $161.40, the property of the society. It is...