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Ky.)

COMMONWEALTH HOLLIDAY

235

Ky., did unlawfully, fraudulently, and feloniCOMMONWEALTH v. HOLLIDAY et al. ously, and without the consent of said George

Bobon Company, convert to his own use one SAME v. HOLLIDAY.

note for and of the value of $100 executed by (Court of Appeals of Kentucky. Oct. 22, 1915.) Arthur Graham to said company, by giving 1. INDICTMENT AND INFORMATION em 125– said note to said Graham for one horse and DUPLICITY.

then selling said horse and converting the proThe accusative part of an indictment un- than $20 and as much as $100, with the fraud

ceeds of sale to his own use, amounting to more mistakably describing the offense denounced by ulent 'and felonious intent then and there to Ky. St. š 1358a, the conversion to one's use of the property of another without the owner's permanently deprive the said owner of its propconsent, the fact that there is in the descrip-erty therein, a further description of which is tive part certain surplusage which might have to the grand jurors unknown, the personal reference to the crime denounced by section property of said George Bohon Company, which 1202, the fraudulent conversion to his own use the care and custody of said Holliday for colby the agent of a corporation of its property, lection by reason of and virtue of said relationdoes not make it duplicitous; it being fairly apparent, taking the indictment as a whole and ship of agency, service, and collectorship existconsidering all its allegations, that the former

ing as aforesaid." offense is charged.

The indictment against Holliday and Mas[Ed. Note.-For other cases, see Indictment ters charges them, while doing business as a and Information, Cent. Dig. $$ 334-400; Dec. firm, withDig. Om 125.]

"the crime of unlawfully, fraudulently, and 2. EMBEZZLEMENT Cm 28 - INDICTMENT - DE- feloniously converting to their own use property SCRIPTION—THING CONVERTED.

of value, the property of another, without the An indictment charging that defendant, consent of the owner thereof, they then and without the consent of the owner, converted to there being joint agents, servants, and collectors his own use a note, by giving it to G. for of and for said owner of said property, commita horse, and then selling the horse and con- ted as follows, viz.: The said Erastus Holliverting the proceeds of the sale to his own use, day and Proctor Masters, doing business under amounts, in the final analysis, only to a charge the firm name of Holliday & Masters, on the of converting to his own use the money of an

day of June, 1913, and within 12 months other, setting forth in a descriptive way the before the finding of this indictment, in the source from which the money came.

county and commonwealth aforesaid, they then [Ed. Note. For other cases, see Embezzle- and there being the joint agents, servants, and ment, Cent. Dig. SS 41, 42; Dec. Dig. Om 28.] collectors of and for the George Bohon Compa3. INDICTMENT AND INFORMATION Cw121, 147 | laws of the state of Kentucky, and doing busi

ny, a corporation duly incorporated under the -BILL OF PARTICULARS.

If the charge in an indictment that de- ness at Harrodsburg, Ky., did unlawfully, fraudfendants converted to their own use buggies, sent of said George Bohon Company, convert wagons, and solvent notes to the value of more to their own use buggies, wagons, and good and than $2,000 is too general, and not sufficiently solvent notes of the value of more than $2,descriptive of the property, the remedy is by 000, with the fraudulent and felonious intent application for bill of particulars, and not by then and there to permanently deprive the said demurrer. [Ed. Note. For other cases, see Indictment tion of which property is to the grand jurors

owner of its property therein, a further descripand Information, Cent. Dig. $$ 316-320, 490- unknown, the personal property of the said 491; Dec. Dig. Om 121, 147.]

George Bohon Company, which said buggies, Appeal from Circuit Court, Washington wagons, and notes had then and there been in

trusted to the care and custody of said HolliCounty.

day and Masters by reason and virtue of said Demurrers to two indictments, one against relationship of agency, service, and collectorErastus Holliday, the other against him and ship existing as aforesaid.” another, were sustained, and the Common- The lower court sustained a demurrer to wealth appeals. Reversed, with directions. each of these indictments, and the common

wealth has appealed. James Garnett, Atty. Gen., and C. S. Hill, Commonwealth's Atty., of Lebanon, for the

While the record does not disclose the Commonwealth. W. C. McChord, of Spring

ground upon which the demurrers were susfield, for appellees.

tained, we assume from the brief of counsel

for appellees that it was because, in the opinTURNER, J. These two appeals present ion of the lower court, more than one offense the same question, and will be disposed of was charged in each indictment, or because together.

neither of the indictments was sufficiently diThe indictment against Holliday alone rect and certain as to the offense charged. charges him with

Section 1202 of the Kentucky Statutes "the crime of unlawfully, fraudulently, and fe- reads as follows: luniously converting to his own use property “If any officer, agent, clerk or servant of any of value, the property of another, without the bank or corporation shall embezzle, or frauduconsent of the owner thereof, he then and there lently convert to his own use or the use of anbeing the agent, servant, and collector of and other, bullion, money, bank notes, or any effor said owner of said property, committed as fects or property belonging to such bank or corfollows, viz. : The said Erastus Holliday, on poration, or other corporation or any person, the day of June, 1913, and before the find- which shall have come to his possession or been ing of this indictment, in the county and com- placed in his care or under his management as monwealth aforesaid, he then and there being such officer, agent, clerk or servant, he and the agent, servant, and collector of and for the person to whose use the same was frauduche George Bohon Company, a corporation duly lently converted, if he assented thereto, shall be incorporated under the laws of the state of confined in the penitentiary for not less than Kentucky and doing business at Harrodsburg, one nor more than ten years."

And section 1358a provides as follows: and carry away therefrom certain personal

“That any person who shall sell, dispose of property. It was urged that this was also or convert to his or her own use or the use of an indictment under section 1162, Kentucky another, any money, property, or other thing of value without the consent of the owner there- | Statutes, describing the offense of feloniously of, shall be punished by confinement in the pen- entering and breaking into a dwelling house itentiary for not less than one nor more than and stealing therefrom things of value, and five years; if the money, property, or thing this court, in answering that argument, said: of value so sold, disposed of or converted to his or her own use be of the value of twenty

"While in this case it would be sufficient in dollars or more; or be confined in the county the accusative part of the indictment to charge jail for not less than one nor more than twelve that the defendant feloniously broke into the months if the value be less than twenty dol- storehouse with the intent to steal therefrom, lars."

the additional allegation that he did feloniously

steal therefrom, the additional allegation that he The contention of the appellants is: (1) did feloniously steal therefrom articles of value That the defendants were unable to tell from does not create any duplicity in the indictment, the indictments whether they were charged and does not yitiate it. Neither do the allegawith the offense of embezzlement under sec- ment which charge that the accused did fe

tions. in the descriptive portion of the indicttion 1202, or whether they were charged with loniously take, steal, and carry away articles the offense of converting property of another of value from said saloon, giving the name of without his consent under section 1358a; (2) in the indictment or vitiate it.”

the owner of the property, create any duplicity that in the indictment against Holliday alone it was uncertain whether he was charged

The accusative part of each of the indictwith the offense of converting to his own use ments in this case unmistakably describes

the offense denounced by section 1358a, and a note, or whether he was charged with converting to his own use a horse, or whether he the fact that there is in the descriptive part was charged with converting to his own use certain surplusage which might have had money of greater value than $20; and (3) reference to the crime denounced by section that the charge in the indictment against Hol- 1202 does not make it bad on account of duliday and Masters that they had fraudulently plicity. Taking the indictments as a whole, converted to their own use buggies, wagons, and considering all of the allegations, it is and notes was too general, and did not suffi- fairly apparent that these charge the offense ciently apprise them of the charge against described by section 1358a, and are not open them.

to the charge of duplicity. The difference be[1] It will be observed that the crime de-tween the accusative part of the indictment nounced by section 1202 is against any offi- and the descriptive part is not so substantial cer or agent of a bank or other corporation as to be fatal to their sufficiency on demurwho shall fraudulently convert to his own use

rer. Overstreet v. Commonwealth, 147 Ky. the property or effects of such corporation, 471, 144 S. W. 751. while the offense described in section 1358a [2] On the second proposition there is little is against all persons who shall convert to difficulty. The charge against Holliday in their own use property of another without the indictment that he without the consent the consent of the owner, and applies wheth- of the owner converted to his own use one er the defendant is an officer or agent of the note of the value of $100 by giving said note owner or not, and does not depend upon to Graham for one horse and then selling the whether the owner is a bank or other cor- horse and converting the proceeds of the sale poration.

to his own use amounts in the final analysis These indictments, in the accusative part, only to a charge of converting to his own use clearly do not refer to the offense described the money of another and setting forth in a in section 1202, for in that part of the indict- descriptive way the source from which the ment there is no reference whatever to the money came. fact that the owner of the property was a cor- [3] The charge in the other indictment poration; but when the draftsman of the that Holliday and Masters converted to their indictments came to the descriptive part he own use buggies, wagons, and solvent notes to used language which would indicate that he the value of more than $2,000 is said to be had both sections in mind, and charged more too general, and not sufficiently descriptive of than was necessary to make the indictment the property charged to have been converted, good under section 1358a, which he had plain- It is quite true that the indictment is very ly started to do, as shown by the accusative general in its allegations as to the personal part.

property alleged to have been converted by The recent case of Drury V. Common- Holliday and Masters; but a demurrer is not wealth, 162 Ky. 123, 172 S. W. 94, was where the proper way to reach this question; it is the indictment was objected to because it was within the discretion of the trial court whensaid it charged two offenses. The indictment ever an indictment has a general charge in it was under section 1164 of the Kentucky Stat- which is good on demurrer, but which does utes, denouncing the crime of breaking into not sufficiently point out or describe the and entering a storehouse with intent to property alleged to have been converted to steal, and the indictment, in addition to al- require the commonwealth to file a bill of leging the breaking into with intent to steal, particulars so that the defendant may know Ky:)

WILSON V. COMMONWEALTH

237

with converting. Bailey V. Commonwealth, Ernest Wilson and Bubber Chafin were con130 Ky. 301, 113 S. W. 140.

victed of murder, and they appeal. ReTreating as surplusage the unnecessary al- versed. legations in each of these indictments, an

John C. Duffy and Tom G. Skinner, both offense was charged under section 1358a,

of Hopkinsville, for appellants. James Garand the demurrers should have been over

nett, Atty. Gen., Chas. H. Morris and Robt. ruled.

T. Caldwell, Asst. Attys. Gen., and W. T. For the reasons given, the judgment is re

Fowler, of Hopkinsville, for the Commonversed, with directions to overrule the de

wealth. murrers.

TURNER, J. Appellants, Ernest Wilson

and Bubber Clafin, were jointly indicted WILSON et al. v. COMMONWEALTH. (Court of Appeals of Kentucky. Oct. 20, 1915.) as the result of a conspiracy alleged to have

charged with the murder of J. M. Renshaw 1. HOMICIDE m 300 — INSTRUCTIONS – MAN- been entered into by them; the indictment SLAUGHTER-SELF-DEFENSE.

Where the evidence on a trial for murder charging that one of them did the shooting precludes the possibility of an altercation or from which Renshaw died and that the other struggle, and shows that deceased was shot was present at the time aiding and abetting stealthily from behind, failure to instruct upon therein, but the one who did the shooting manslaughter and self-defense is not error.

[Ed. Note. For other cases, see Homicide, was unknown to the grand jury. Upon their Cent. Dig. $S 614, 616-620, 622-630; Dec. Dig. joint trial they were each convicted and senOm 300.]

tenced to the penitentiary for life, and they 2. CONSPIRACY Om 48

48- EVIDENCE – SUFFI- jointly prosecute this appeal. CIENCY.

Renshaw lived a few miles south of HopEvidence on a trial for murder reviewed, and held to justify the court in submitting to kinsville, on the Clarksville pike, and a short the jury the question of conspiracy between de- distance north of his home and in sight therefendants.

of was a bridge crossing Little river, over [Ed. Note.--For other cases, see Conspiracy, which he had to pass in going to HopkinsCent. Dig. S$ 108–111; Dec. Dig. Om 48.]

ville. On the afternoon of September 25, 3. CRIMINAL LAW Om510-ACCOMPLICE TES- 1914, about 3:15 o'clock, he left his home TIMONY-WHAT IS.

Where, in a murder trial, a witness who alone in his buggy and started towards Hopoverheard the two defendants talking together kinsville. About the time he reached the in jail, testified that one of them stated that bridge, or was just past it, a shot was heard the other had fired the fatal shot, it was not er: in that vicinity. A short distance beyond the ror to refuse an instruction limiting the weight of such evidence, under section 241, Cr. Code bridge he was met by persons in two or more Prac., requiring corroboration of the testimony vehicles, was bent over in his buggy, had of an accomplice, since the section applies only dropped the lines, and seemed to be either to testimony given by the accused in open sick or drunk, although his horse continued court.

[Ed. Note. For other cases, see Criminal Law, to trot slowly along. . A short distance furCent.Dig. $$ 1121-1126; Dec. Dig. Om510.] ther on his son, who was going home from 4. CRIMINAL LAW cm 107-EVIDENCE-ADMIS- Hopkinsville, met him, and, seeing his condiSIONS-FAILURE TO DENY.

tion, stopped the horse, took him back home, Where, in an action for murder, it was fair- and immediately sent for a physician, when ly apparent that the witness overheard the whole conversation between the two defendants it was discovered that he had been shot in while in jail and believing themselves alone, the back of the head about 142 inches back and that the witness gave the substance of the of the right ear. He never regained conentire conversation in his testimony, it was not sciousness and died in about two weeks. error to admit a statement in the conversation, "You know you are the one that fired the shot." A short distance north of the bridge is a desince under such circumstances it sufficiently pression in the road, where it is concealed appeared that the defendant so accused remain- from sight by trees or hedge, and it is at ed silent, when, if false, he would naturally have this point where the shot is supposed to have denied the charge.

[Ed. Note.-For other cases, see Criminal been fired. Renshaw at the time had about Law, Cent. Dig. $$ 898-902, 949, 968, 970, 971; | $20 in money upon his person, which had not Dec. Dig. Om 407.]

been disturbed when his son met him. 5. CRIMINAL LAW Cm121HOMICIDE Cw174 The appellants are shown by the evidence -JOINT MURDER-THREATENING LETTER.

to have been very intimate friends and comOn the trial of two defendants, jointly charged with murder, the admission of a letter panions. Early that morning one of them in evidence, written by one of the defendants went to the home of the other and called him after the crime and while in jail, and containing out. They were later seen together on a a threat to kill the jailer, was error; such evi: railroad track some three-quarters of a mile dence being wholly irrelevant to the issues and calculated to prejudice the jury.

distant from the scene of the killing, at [Ed. Note. For other cases, see' Criminal which time Chafin was approached and asked Law, Cent. Dig. $$ 1002–1010; Dec. Dig. Om to refund some money which he had promis424; Homicide, Cent. Dig. $S 359-371; Dec. ed to pay that day. He said he did not have Dig. Om 174.]

the money, but, in the presence of Wilson, Appeal from Circuit Court, Christian said to the witness that he would have some County.

money before night if he had to kill some son of a bitch. Within one hour before the a cleat on one of his shoes such as are placed shooting, probably within 30 minutes, Chafin on baseball shoes, and Fowler testifies that was seen near the bridge, going in that di- Wilson at the time had on a pair of old baserection, with a woman named Mattie Taylor, ball shoes, which seemed to be too small for with whom he is shown to have been inti- him, and which were split. After the arrest mate. About the same time Wilson was seen of Wilson he told the deputy sheriff that he approaching the bridge and near it. With- had some ciothes at the home of Eva Chafin, in a very short time before the shot was fired a relative of Bubber Chafin, and when the two negro men were seen near the south deputy sheriff went to the home of Eva abutment of the bridge, and a negro woman Chafin he found among other things one of the general description of Mattie Taylor baseball shoe, which had been split. . He was seen leaving there. Shortly after the could not find the other shoe, but directed shooting two negro men were seen about 100 the woman to hunt it up, and upon going yards below the bridge, as they dodged into back the following day found a baseball shoe the hedge along the river. Immediately on the fire, partially destroyed. after the shooting two men were seen to In addition to this circumstantial evidence, emerge from the south entrance of the there is evidence by a negro man that Bubber bridge. There had been a shower that day Chafin told him in November, at Nortonsand the ground was soft, and early the next ville, before his arrest, that he had shot a morning it could be seen where they climbed white man at Hopkinsville and was on his over the fence near the south abutment, their road to St. Louis. A negro woman testifies tracks followed down the river to a shallow that some time after the killing Chafin underplace where they crossed, and thence pro- took to pay her some attention, or "to go ceeded, as shown by their tracks, remaining with her,” as she says, and she declined to together all the time, until they got several permit him to do so, whereupon he told her hundred yards away, when one of them left that if she did not go with him that she the other and proceeded toward the house, would never do anybody else any good, that as shown by his tracks, of a negro woman he had shot and killed Mr. Renshaw, and inin the neighborhood named Leavell. His ferentially threatened to kill her. Doc Beautracks were then traced back to the point mont, colored, was an inmate of the jail at where he had left his companion, and thence the same time Wilson and Chafin were, and they proceeded together until they reached testifies to a conversation between them, the railroad track of the Tennessee Central overheard by him, but which they did not Railroad. Later that afternoon two negroes know he heard. His statement is as follows: were seen a few miles away proceeding hast- “Bubber says to Ernest, 'Have you got you a ily along the railroad track. The south abut- lawyer?' and Ernest told him, 'No,' he didn't ment of the bridge is in sight of the house to get you one;

need no lawyer; and Bubber said, 'You ought

to get you one;' and he said, 'I don't need no of Renshaw, and he could be seen from there lawyer; and Ernest said, 'You know you are the as he drove out of his place toward the pike. one that fired the shot;' and I never said nothThe top of the buggy in which Renshaw was ing myself, because I wasn't concerned in it my

self, and that is all I heard.” riding was partially down, and the shot

The witnesses who saw the two negro men which killed him first passed through the

at the bridge just a short time before the top of the buggy and struck him in the head, shooting did not know either of the appelranging up; the top of the buggy being lants, and, having paid no particular attenpowder-burnt, as well as the back of Ren- tion to them, did not identify either one of shaw's neck.

them; but the witness who saw Chafin in It is the theory of the commonwealth that company with the woman going toward the these two negroes, being in desperate need bridge knew him well and positively identiof money, had entered into a conspiracy to

fies him, and the witness who saw Wilson murder and rob any one that might happen about the same time going toward the bridge along at this bridge at a favorable time, and and near it knew him also and positively that after they had shot Renshaw they were identifies him.

identifies him. Each of the defendants dedeterred from carrying out their purpose of nied being at the bridge on that day, or havrobbery by the unexpected appearance of ing anything to do with the shooting of Renother persons along the highway. The tracks shaw; and they each relied upon an alibi, made by the two persons were so far apart which they undertook separately to estabas to indicate that they were running at the lish. Several witnesses testified for Chafin time, and the tracks made by one of them that during that day at different times he showed that he had a cleat on at least one

was at work in his father's tobacco field, of his shoes such as is placed on baseball and some of them said that he was there at shoes, and it is shown by the evidence that about the time the crime was committed ; two or three days after the killing Wilson on the contrary, the commonwealth in rewas wearing a pair of baseball shoes. On

On buttal introduced at least three witnesses the Tuesday following the killing on Friday who denied that Chafin was in the field at Wilson was informed by his employer, Fow- that time.

that time. For Wilson, in addition to his ler, that the tracks showed that one of the own statement, two witnesses were introKy.)

WILSON V. COMMONWEALTH

239

shooting he was at the house of Roy Carter; } physical facts are such as to preclude the idea but this statement is denied by Carter and that there was a struggle or any resistance of

fered whatever by the deceased at the time that his family, some of whom stated that he his life was taken, the trial court would be was not there during that day.

fully justified and warranted in refusing to give Five reasons are urged as grounds for re an instruction on self-defense. And again, versal: (1) That the trial court erred in where the physical facts, as in the case before

us, are such as to preclude the idea or the posfailing to instruct on the law of manslaugh- sibility that the killing was the result of an ter and self-defense; (2) that it erred in accident, or that it was the result of a sudden giving an instruction on conspiracy; (3) affray, then the trial court would be warranted that it erred in failing to give an instruction in refusing to give an instruction on the subthat it erred in failing to give an instruction jects of voluntary or involuntary manslaughconforming to the provisions of section 241 ter." of the Criminal Code ; (4) that it erred in The rule laid down in that case is just as admitting incompetent evidence against the applicable to the facts in evidence here as it defendants; and (5) that it erred in permit- was there. ting improper argument to the jury by the

[2] The second contention is that the inattorneys representing the commonwealth.

struction on conspiracy should not have been [1] The contention that there should have given, for the reason that there was no evibeen an instruction upon manslaughter and dence of a conspiracy. While it may be adself-defense is based upon the rule, many mitted that there was no direct evidence of times declared by this court, that when there a conspiracy, an analysis of the evidence is no eyewitness to a homicide, and no one already stated shows such facts and circumwho saw the parties after they met on the stances as authorized the jury to infer that occasion of the killing, the law covering mur- there was a conspiracy. The fact that they der, self-defense, and manslaughter should were chums and were together almost evall be given to the jury in the instructions, ery day; that one of them went to the home in order to meet any state of fact which the of the other on that morning and by signal jury might find from the circumstances in called him out; that they left there together, evidence to have existed; and that is un- and some time later, when money was dequestionably the rule when there is no evi- manded from one of them, which he did not dence, either direct or circumstantial, from have, he stated in the presence of the other which the jury might infer that an alterca- that he would have some money before night tion had taken place between the parties. or kill some son of a bitch; that they were But where all the evidence and all the phys- seen that afternoon, a short time before the ical facts show that there could have been shooting, each approaching the bridge; that no altercation or struggle, and that the de- shortly thereafter a shot was fired, and two cedent was stealthily shot from behind with- men were seen immediately running across out notice, as in this case, the idea of self- the bridge and emerging from its southern defense or manslaughter is positively pre- entrance; that in two or three minutes therecluded. In this case the uncontradicted evi- after two men answering to their general dedence is that Renshaw, a few short moments scription were seen a short distance down before the shot was fired, was driving peace- the river from the bridge, and upon being fully along the highway; that at the bridge discovered dodged into the bushes; the fact which he had to cross there were two men; that the tracks of one of those men showed that when he was a short distance beyond that the shoe he wore had a cleat on it, and the bridge a shot was fired from the rear, that a day or two later one of them had on through the top of his buggy, into the back a pair of baseball shoes which had been slit of his head; that two or three minutes down in front, and that one shoe answering thereafter he was seen in his buggy, but this description was some time later found by stooped over and resting upon the buggy, with an officer at a place where Wilson said he had the lines lying loose. It would be difficult some clothes; the fact that one of the deto imagine under this evidence how an al- fendants immediately after the killing disaptercation could have taken place between peared from the vicinity of Hopkinsville, and Renshaw and the person or persons who that the other remained thereabouts, but was killed him. In the case of Bast v. Common- hidden in the daytime; the fact that shortly wealth, 124 Ky. 747, 99 S. W. 978, 30 Ky. thereafter one of the defendants stated to a Law Rep. 967, all the authorities in this witness that he had shot a white man at state were reviewed on this question, and the Hopkinsville and was going to St. Louis; the court, after an exhaustive investigation and fact that the same defendant stated to ananalysis of all the cases, laid down the rule other witness that he had killed Mr. Renin this way:

shaw; and the further fact that one of the "This court has held with a degree of uni- defendants said to the other, after they formity that it is the duty of the trial court to give to the jury all the law of the case, as were in jail, “that you know you are the one warranted by the facts and circumstances prov- that fired the shot,” when all taken together, en; and in those cases in which the physical and put together, form a chain of circum

show occurred in a particular way, then it is not stances which authorized the jury to believe the duty of the trial court to give to the jury that there had been a prearranged plan be

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