Commonwealth v. Bradley

116 S.W. 761, 132 Ky. 512, 1909 Ky. LEXIS 129

Opinion

Opinion op the’Court by

Chief Justice Settle

Affirming.

Appellee was indicted in the court below for embezzlement, the making of false entries, misapplica tion of funds, and wrongful conversion of personal property. A' demurrer was sustained to the indictment, and, from the judgment manifesting the ruling of the court upon the demurrer, the Commonwealth prosecutes this appeal.

It is claimed by counsel’ for appellant that the indictment was found under section 2747, Ky. St., which provides: “If any auditor, tax receiver, treasurer or comptroller, or other assistant or deputy * of such officer of said city, shall make or knowingly permit others to make a false entry in his books, or shall allow or disallow any item or items, or - shall knowingly fail to make any proper entry in his' books, with intent to cheat or defraud said city, or any person or corporation, or shall embezzlé or knowingly misapply or withhold any money or property of any kind belonging to said city, or coming into his hand's officially, such officer, assistant or deputy shall upon conviction, be confined in the penitentiary of this commonwealth not less than two nor more than ten years.”

The indictment is of such unusual length that we refrain from copying it in the opinion, but will separately consider and dispose of its several accusations. After setting forth the appointment of appellee as live stock inspector of the city of Louisville and' in some measure defining his duties as such, the indictment proceeds to charge:

(1) That appellee, with intent to cheat and defraud the city of Louisville and other persons and corporations interested whose names were to the grand jury unknown, did feloniously make and permit others to make false entries in the books and records he was required to return to the health officer of the city of Louisville, and did.himself knowingly fail to make proper entries therein and allow and disallow item or items. It will he observed that these averments of the indictment do not indicate with respect to what duty devolving upon appellee, or what property, he made or permitted to be made the false entries referred to, what items he failed to make proper entries of, or what items he improperly allowed or disallowed. The indictment also fails to indicate the names of the person or persons who were permitted to make the alleged false entries in the books and records he was required to return to the health officer, or that their names were to the grand jury unknown. Nor is it charged that he ever returned the books or records to the health officer. The allegations of the indictment referred to are so indefinite that it is impossible to determine from them what offense was charged, by what means it was committed, or who, if any one, was defrauded. Moreover, it is not apparent that appellee’s duties are prescribed by statute, and, if defined by an ordinance of the city of Louisville, that fact should have been, but is not, alleged. ■. . , r«"'

(2) The indictment further charges, in substance, that appellee did knowingly misapply and withhold money and property coming into his hands as such live stock inspector, and at various times condemn diseased live stock without tagging them1, and permit-them to be delivered to Henry Spatz and- others to be slaughtered and' sold on the market as sound meat, instead of condemning and tagging such diseased stock as unsound and having them destroyed by the dead animal contractor, as the law required him to do; that the diseased cattle thus condemned by ap-pellee went into his possession as live stock inspector and were misapplied by bim, and used as food for human consumption after being permitted by him to be sold; and that for two years before the finding of the indictment appellee as such live stock inspector did not tag or deliver to the dead animal contractor exceeding 30 head of cattle, including diseased and crippled, to be destroyed as required by law; that from September, 1906, to September, 1907, appellee made false entries in his report and record kept as live stock inspector that he had condemned but 202 head of cattle when in truth a much larger number had been condemned by him in that time; also, that he had tagged and delievered to Pero and Stecker 79 head of cattle when in truth he had not delivered to them more than 30 head; and that in 'August, 1907, as -such live stock inspector, he had in his possession and misappropriated 93 hogs affected with cholera which had been condemned, but which he passed and permitted Spartz to slaughter, and to sell as meat for human consumption. "We can but repeat that the several- matters of alleged wrongdoing' last above set forth are too indefinite to inform appellee of Ihe nature of the offense, or, rather, offenses, intended, to be charged. It cannot be told from the language of the indictment whose property or how much of it ho misapplied or the precise manner of its misapplication, and it does not mention the name of a single owner of cattle or hogs appellee as live stock inspector misapplied.

(3) It is further alleged in the indictment that appellee unlawfully and feloniously condemned meat that was sound, took it away from the owners, sold it, or had it sold, and appropriated' the proceeds to his own use or that of others to the grand jury unknown, and as live stock inspector “was guilty of felonious transactions and a series thereof, by which he embezzled or knowingly misapplied and withheld money and property coming into his hands officially belonging to various persons and corporations, the names of all of whom are to the grand jury unknown.” The above allegations were followed by a reiteration of many others, previously made, imputing to appellee the witholding of cattle from the dead animal contractor which had been condemned as diseased and unsound, the selling as fit for human consumption of others that were diseased, the making of false entries in the books and records kept by him, and the misappropriation of money, property, etc., all with the felonious intent to defraud the city of Louisville or persons and corporations interested. These further and final averments of the indictment are open to the same objections that we have said would lie to those going before, for they are equally uncertain and clearly lacking in the elements essential to the validity of an indictment. No names are given of persons whose cattle were wrongfully condemned. No mention is made of the kind or quantity of the latter condemned or misappropriated by appellee, to whom they were sold, the value, or the sum or sums received therefor. Can it be known from such numerous and loose charges, what is intended, neither place, person nor value as to any of the offenses committed at “various times” being named"? Yet section 122 Cr. Code Prac., provides: “The indictment must contain — A statement of the acts constituting the offense in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended. * * *” Section 124 provides that an indictment must be direct and certain (1) as to the party charged; (2) as. to thee-ffense charged; (3) as to the county in which the offense is committed; (4) as to the particular circumstances of the offense charged. The indictment fails to comply with the requirements of the above sections of the Code. Also violates section 126 of the Criminal Code of Practice, in that it charges more than one offense. Indeed, we may say it attempts to charge a score of offenses without properly setting forth one. If the many acts of embezzlement and misappropriation of property laid at appellee’s door were sufficiently alleged in the indictment, each would constitute a separate offense, for which, if found guilty, he might be punished. Section 126, Cr. Code. Prac., provides: “An indictment except in the cases" mentioned in the next section, must charge but one offense, but if it may have been committed in different modes and by different means, the indictment may allege the modes- and means in the alternative.” Section 127 declares what offenses may be joined in the same indictment. Its language is as follows: “The-offenses named in each of the subdivisions of this section may be charged in one indictment. (1) Larceny and knowingly receiving stolen property. (2) Larceny and obtaining money or property on false pretenses. (3) Larceny and embezzlement. (4) Robbery and burglary. (5) Robbery and assault with intent to rob. (6) Passing or attempting to pass-counterfeit money or United States currency or bank notes,, knowing them to be such, and having in possession counterfeit money, or United States currency or banknotes, knowing them to be such, with the intention of circulating the same.” It will be observed that larceny and embezzlement may be joined- in the same- indictment. The indictment under .consideration does not, however, charge larceny. It attempts to charge .appellee with the crime of embezzlement, and further attempts to make of certain other acts therein mentioned fraudulent misappropriations of property and other offenses; all but the embezzlement constituting misdemeanors or malfeasance in office. Such a joinder of offenses in the one indictment will.not be allowed. On this ground, if there had been no other, the •demurrer to the indictment was properly sustained, for a demurrer is the proper mode of objecting, to such a misjoinder. Johnson v. Commonwealth, 90 Ky. 488, 14 S. W. 492. It is true section 168, Cr. Code Prac., provides: “If the indictment, improperly •charge more than one offense, the attorney for the commonwealth may dismiss one of - them, .and thereupon the demurrer shall not be sustained on that .ground.” Ellis v. Commonwealth, 78 Ky. 130. But unfortunately for the commonwealth it' could not in • this case correct the misjoinder by electing to. try as .do one and dismiss as to the others; for the indictment is not good as to any offense therein attempted to be charged1. So no- election was or could be made.

It is, however, now insisted for the‘commonwealth that the indictment is good as to the charge of embezzlement. We cannot assent to this conclusion, and, without reiterating the defects in the indictment, it is sufficient to say that embezzlement is a purely statutory offense partaking much of the nature of larceny. Therefore “the property embezzled must be • described' with the same particularity and the ownership stated with the same degree of care as is required in an indictment for larceny. * * *” 1 Robertson’s Criminal Law, 633-464. In Commonwealth v. Lewis, 12 S. W. 266, 11 Ky. Law Rep. 421, it was held that the indictment charging the defendant with concerting to his own use the proceeds of vacant lands which he had collected as county judge should allege, not merely that he hád used the money for his own benefit, but that he failed and refused to account for or pay it over at the time, in the manner, and for the purpose required by law.

Tested by the foregoing requirements of the law,, as well as in other particulars already commented, upon, the indictment in the instant case is fatally defective as an indictment for embezzlement, either under section 2747, Ky. St., upon which it was attempted to be based, or section 1202 thereof, which defines, the crime of embezzlement and prescribes the punishment therefor.

With respect to the question of appellee’s guilt or innocence, we are not required to express an opinion; that being a matter for the determination of a jury under a valid indictment and the guidance of' the trial court. But, being of opinion that the demurrer to the present indictment was properly sustained, the judgment is affirmed.