Underwood v. Com.

• Decision Date: 12 February 1965
• Citation: 390 S.W.2d 635
• Parties: 2 UCC Rep.Serv. 935 Bradford UNDERWOOD et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 635

390 S.W.2d 635

2 UCC Rep.Serv. 935

Bradford UNDERWOOD et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 12, 1965.

As Modified on Denial of Rehearing June 4, 1965.

John Swinford, Wayne W. Fitzgerald, Cynthiana, for appellants.

Robert Matthews, Atty. Gen., Frank D. Berry, Asst. Atty. Gen., Frankfort, for appellee.

DAVIS, Commissioner.

The appellants, Bradford and Emma Underwood, are husband and wife. They were jointly indicted, tried and convicted of violation of KRS 434.010. Bradford Underwood received sentence of imprisonment for seven years; Emma's sentence was fixed at imprisonment for five years.

In their joint appeal appellants assign the following claimed errors: (1) A separate trial should have been granted for Emma pursuant to RCr 9.16; (2) the court failed to properly instruct the jury as to the limited purpose of the proof of other crimes; (3) the court erroneously instructed the jury; and (4) the evidence was insufficient to support the verdict, and directed verdict of acquittal should have been given.

Bradford Underwood was employed as a milk truck driver by Kentucky Cardinal Dairies, Inc. from 1955 until April, 1963. In the course of his work Bradford collected milk from various farmers along the milk route. The milk was hauled in conventional milk cans; the average weight of a full can of milk is approximately 85-87 pounds. Bradford delivered the milk so collected to the dairy plant in Cynthiana, where the milk was weighed and tested by other employees of the dairy. If such tests reflected that the milk was sour, dirty or otherwise unsatisfactory, the dairy refused to accept the milk. In such cases of rejection, Bradford would rehaul the milk to the producer from whom it had been obtained.

Bradford's compensation, paid entirely by the dairy, was $7.00 per day plus 40cents per thousand pounds of milk hauled. Neither he nor the shipper of rejected milk received compensation for such milk.

In April, 1963, a change was made in the relationship between Bradford Underwood and the dairy. From and after that date he furnished his own truck chassis, equipped with a body furnished by the dairy. Underwood no longer drew any salary, but his compensation was fixed at 40cents per hundred pounds of milk delivered; the money for the payment was deducted from the gross proceeds due the shippers, so ultimately the shippers were paying Underwood for the hauling after April, 1963.

In February, 1960, Bradford Underwood began to deliver shipments of milk to the dairy in the name of producer J. C. Wise. The prosecution showed that Kentucky Cardinal Dairy, Inc. had issued many checks payable to J. C. Wise for milk. In round figures, the aggregate of the checks so issued to J. C. Wise was $2,487 for 1960, $2,442 for 1961, and $2,729 for 1962. There was no shipment to Kentucky Cardinal from J. C. Wise after December 31, 1962.

However, it was shown that J. C. Wise's name began to appear as a milk shipper to the Kraft Foods Company cheese plant in nearby Owenton on February 2, 1963. Eleven checks from Kraft to J. C. Wise were introduced in evidence; they bear dates beginning February 28, 1963, and ending August 15, 1963, and cover amounts aggregating $1,139.45. The final check was for shipments of milk in the name of J. C. Wise on July 16th and 17th, 1963. No shipment from J. C. Wise was received by Kraft after July 17, 1963.

The specific charge contained in the indictment is that 'On and between the 1st day of July, 1963, and the 15th day of July, 1963 * * * the * * * defendants committed the crime of unlawfully and fraudulently converting to their own use a quantity of raw milk of the value of $183.84 which was the property of the Kentucky Cardinal Dairies, Inc. * * *.' The item of $183.84 was related to a check payable to J. C. Wise, issued by Kraft Foods, dated July 30, 1963; the check covered payment for milk received by Kraft from the shipper known to it as J. C. Wise during the period July 1st through July 15th, 1963.

The prosecution's theory of the case is that J. C. Wise is nonexistent, and that in truth the name is simply an alias for appellant Bradford Underwood. The inference drawn by the prosecution from the circumstances is that Underwood systematically poured off a portion of milk from the milk cans of various shippers; that he consolidated such poured off milk into cans he then delivered, first to Kentucky Cardinal--then to Kraft--all in the fictitious name of J. C. Wise.

In support of this theory the commonwealth showed the checks heretofore mentioned. A bank teller testified that he had cashed twelve checks, dated July 15, 1962, through December 31, 1962, all payable to J. C. Wise and all drawn by Kentucky Cardinal Dairies. The teller said that the man whom he knew as J. C. Wise, and for whom he cashed the checks was, in fact, Bradford Underwood. The banker said that he recalled that Bradford Underwood (known to him only as J. C. Wise) had endorsed at least one of the checks in the banker's presence.

Additionally, there was documentary evidence reflecting that checks emanating from the Kraft Company, payable to J. C. Wise (including the check of $183.84 dated July 30, 1963) were credited into the bank account of Bradford Underwood at Harrison Deposit Bank--not the bank where he had cashed the checks from Kentucky Cardinal.

It was shown that the butterfat content of the 'Wise' milk ranged well above the average butterfat content of other milk produced in the same area. The commonwealth draws the inference from this that Underwood was drawing the cream off the top of the various cans in 'producing' the 'Wise' shipments.

Another significant circumstance was the absence of 'Wise' milk shipments during periods when Underwood was on vacation--coupled with the complete 'drying up' of the 'Wise' here after July 17, 1963, the last day Underwood 'made his haul.'

The Kraft milk route driver testified that he had first learned of the desire of J. C. Wise to become a shipper to Kraft when he had a telephone call from a man who identified himself as 'J. C. Wise.' The Kraft man never did see J. C. Wise, nor was he able to find out anything about him in the neighborhood where the milk was picked up. In fact, nobody could identify this 'Wise' man.

However, appellant Emma Underwood (who worked in the laboratory at Kentucky Cardinal) did see the Kraft driver on two occasions. These were the occasions when the final two Kraft checks payable to J. C. Wise were delivered to her. When she obtained the last check, posing as the daughter of Wise, as the witness tells it: 'I asked her how come they quit milking, and she said her dad was getting too old and couldn't get anybody to help him, so he was going to quit and sell out and move to town and I asked her how far did they live up that road and she said Bridge Street in Cynthiana, that's all.'

There were certain other incriminating circumstances, including evidence relating to Bradford Underwood's stopping the milk truck with marked regularity at a spot somewhat distant from any house or barn--with each stopping being accompanied by noises suggesting that milk cans were being moved about within the truck.

Bradford Underwood took the stand and categorically denied everything. Mrs. Underwood did not testify.

Emma Underwood made timely motion that she be granted a trial separate from the...