COMMONWEALTH v. HOLLIDAY et al. ously, and without the consent of said George SAME v. HOLLIDAY. (Court of Appeals of Kentucky. Oct. 22, 1915.) 1. INDICTMENT AND INFORMATION 125DUPLICITY. The accusative part of an indictment unmistakably describing the offense denounced by Ky. St. 1358a, the conversion to one's use of the property of another without the owner's consent, the fact that there is in the descriptive part certain surplusage which might have reference to the crime denounced by section 1202, the fraudulent conversion to his own use by the agent of a corporation of its property, does not make it duplicitous; it being fairly apparent, taking the indictment as a whole and considering all its allegations, that the former offense is charged. [Ed. Note.-For_other_cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. 125.] 2. EMBEZZLEMENT 28-INDICTMENT-DESCRIPTION-THING CONVERTED. An indictment charging that defendant, without the consent of the owner, converted to his own use a note, by giving it to G. for a horse, and then selling the horse and converting the proceeds of the sale to his own use, amounts, in the final analysis, only to a charge of converting to his own use the money of another, setting forth in a descriptive way the source from which the money came. [Ed. Note. For other cases, see Embezzlement, Cent. Dig. §§ 41, 42; Dec. Dig. 28.] 3. INDICTMENT AND INFORMATION 121, 147 -BILL OF PARTICULARS. If the charge in an indictment that defendants converted to their own use buggies, wagons, and solvent notes to the value of more than $2,000 is too general, and not sufficiently descriptive of the property, the remedy is by application for bill of particulars, and not by demurrer. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 316-320, 490494; Dec. Dig. 121, 147.] Appeal from Circuit Court, Washington County. Ky., did unlawfully, fraudulently, and feloniBohon Company, convert to his own use one note for and of the value of $100 executed by Arthur Graham to said company, by giving said note to said Graham for one horse and then selling said horse and converting the proceeds of sale to his own use, amounting to more than $20 and as much as $100, with the fraudulent and felonious intent then and there to permanently deprive the said owner of its property therein, a further description of which is to the grand jurors unknown, the personal property of said George Bohon Company, which the care and custody of said Holliday for colsaid note had then and there been intrusted to lection by reason of and virtue of said relationship of agency, service, and collectorship existing as aforesaid." The indictment against Holliday and Masters charges them, while doing business as a firm, with "the crime of unlawfully, fraudulently, and feloniously converting to their own use property of value, the property of another, without the consent of the owner thereof, they then and there being joint agents, servants, and collectors of and for said owner of said property, committed as follows, viz.: The said Erastus Holliday and Proctor Masters, doing business under the firm name of Holliday & Masters, on the day of June, 1913, and within 12 months before the finding of this indictment, in the county and commonwealth aforesaid, they then and there being the joint agents, servants, and collectors of and for the George Bohon Compalaws of the state of Kentucky, and doing businy, a corporation duly incorporated under the ulently and feloniously, and without the conness at Harrodsburg, Ky., did unlawfully, fraudsent of said George Bohon Company, convert solvent notes of the value of more than $2,to their own use buggies, wagons, and good and 000, with the fraudulent and felonious intent then and there to permanently deprive the said owner of its property therein, a further description of which property is to the grand jurors unknown, the personal property of the said George Bohon Company, which said buggies, wagons, and notes had then and there been intrusted to the care and custody of said Holliday and Masters by reason and virtue of said relationship of agency, service, and collectorship existing as aforesaid." The lower court sustained a demurrer to each of these indictments, and the commonwealth has appealed. Demurrers to two indictments, one against Erastus Holliday, the other against him and another, were sustained, and the Commonwealth appeals. Reversed, with directions. James Garnett, Atty. Gen., and C. S. Hill, Commonwealth's Atty., of Lebanon, for the Commonwealth. W. C. McChord, of Spring-tained, we assume from the brief of counsel field, for appellees. TURNER, J. These two appeals present the same question, and will be disposed of together. The indictment against Holliday alone charges him with "the crime of unlawfully, fraudulently, and feloniously converting to his own use property of value, the property of another, without the consent of the owner thereof, he then and there being the agent, servant, and collector of and for said owner of said property, committed as follows, viz. The said Erastus Holliday. on the day of June, 1913, and before the finding of this indictment, in the county and commonwealth aforesaid, he then and there being the agent, servant, and collector of and for the George Bohon Company, a corporation duly incorporated under the laws of the state of Kentucky and doing business at Harrodsburg, While the record does not disclose the ground upon which the demurrers were sus for appellees that it was because, in the opinion of the lower court, more than one offense was charged in each indictment, or because neither of the indictments was sufficiently direct and certain as to the offense charged. 1202 of the Kentucky Statutes reads as follows: "If any officer, agent, clerk or servant of any bank or corporation shall embezzle, or fraudulently convert to his own use or the use of another, bullion, money, bank notes, or any effects or property belonging to such bank or corporation, or other corporation or any person, which shall have come to his possession or been placed in his care or under his management as such officer, agent, clerk or servant, he and the person to whose use the same was fraudulently converted, if he assented thereto, shall be confined in the penitentiary for not less than one nor more than ten years.' And section 1358a provides as follows: "That any person who shall sell, dispose of or convert to his or her own use or the use of another, any money, property, or other thing of value without the consent of the owner thereof, shall be punished by confinement in the penitentiary for not less than one nor more than five years; if the money, property, or thing of value so sold, disposed of or converted to his or her own use be of the value of twenty dollars or more; or be confined in the county jail for not less than one nor more than twelve months if the value be less than twenty dollars." and carry away therefrom certain personal property. It was urged that this was also an indictment under section 1162, Kentucky Statutes, describing the offense of feloniously entering and breaking into a dwelling house and stealing therefrom things of value, and this court, in answering that argument, said: "While in this case it would be sufficient in the accusative part of the indictment to charge that the defendant feloniously broke into the storehouse with the intent to steal therefrom, the additional allegation that he did feloniously steal therefrom, the additional allegation that he did feloniously steal therefrom articles of value does not create any duplicity in the indictment, and does not vitiate it. Neither do the allegations. in the descriptive portion of the indictment which charge that the accused did feloniously take, steal, and carry away articles of value from said saloon, giving the name of in the indictment or vitiate it." the owner of the property, create any duplicity The contention of the appellants is: (1) That the defendants were unable to tell from the indictments whether they were charged with the offense of embezzlement under section 1202, or whether they were charged with the offense of converting property of another without his consent under section 1358a; (2) that in the indictment against Holliday alone The accusative part of each of the indictit was uncertain whether he was charged with the offense of converting to his own use ments in this case unmistakably describes a note, or whether he was charged with con- the offense denounced by section 1358a, and verting 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 converted to their own use buggies, wagons, and notes was too general, and did not sufficiently apprise them of the charge against them. [1] It will be observed that the crime denounced by section 1202 is against any officer or agent of a bank or other corporation who shall fraudulently convert to his own use the property or effects of such corporation, while the offense described in section 1358a is against all persons who shall convert to their own use property of another without the consent of the owner, and applies whether the defendant is an officer or agent of the owner or not, and does not depend upon whether the owner is a bank or other corporation. These indictments, in the accusative part, clearly do not refer to the offense described in section 1202, for in that part of the indictment there is no reference whatever to the fact that the owner of the property was a corporation; but when the draftsman of the indictments came to the descriptive part he used language which would indicate that he had both sections in mind, and charged more than was necessary to make the indictment good under section 1358a, which he had plainly started to do, as shown by the accusative part. The recent case of Drury v. Commonwealth, 162 Ky. 123, 172 S. W. 94, was where the indictment was objected to because it was said it charged two offenses. The indictment was under section 1164 of the Kentucky Statutes, denouncing the crime of breaking into and entering a storehouse with intent to steal, and the indictment, in addition to alleging the breaking into with intent to steal, plicity. Taking the indictments as a whole, and considering all of the allegations, it is fairly apparent that these charge the offense described by section 1358a, and are not open to the charge of duplicity. The difference between the accusative part of the indictment and the descriptive part is not so substantial as to be fatal to their sufficiency on demurrer. Overstreet v. Commonwealth, 147 Ky. 471, 144 S. W. 751. [2] On the second proposition there is little difficulty. The charge against Holliday in the indictment that he without the consent of the owner converted to his own use one note of the value of $100 by giving said note to Graham for one horse and then selling the horse and converting the proceeds of the sale to his own use amounts in the final analysis only to a charge of converting to his own use the money of another and setting forth in a descriptive way the source from which the money came. [3] The charge in the other indictment that Holliday and Masters converted to their own use buggies, wagons, and solvent notes to the value of more than $2,000 is said to be too general, and not sufficiently descriptive of the property charged to have been converted. It is quite true that the indictment is very general in its allegations as to the personal property alleged to have been converted by Holliday and Masters; but a demurrer is not the proper way to reach this question; it is within the discretion of the trial court whenever an indictment has a general charge in it which is good on demurrer, but which does not sufficiently point out or describe the property alleged to have been converted to require the commonwealth to file a bill of particulars so that the defendant may know with converting. Bailey v. Commonwealth, 130 Ky. 301, 113 S. W. 140. Treating as surplusage the unnecessary allegations in each of these indictments, an offense was charged under section 1358a, and the demurrers should have been overruled. For the reasons given, the judgment is reversed, with directions to overrule the de murrers. WILSON et al. v. COMMONWEALTH. (Court of Appeals of Kentucky. Oct. 20, 1915.) (Court of Appeals of Kentucky. Oct. 20, 1915.) 1. HOMICIDE 300-INSTRUCTIONS-MAN SLAUGHTER-SELF-DEFENSE. Where the evidence on a trial for murder precludes the possibility of an altercation or struggle, and shows that deceased was shot stealthily from behind, failure to instruct upon manslaughter and self-defense is not error. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. mm 300.] [Ed. Note. For other cases, see Criminal Law, Cent.Dig. §§ 1124-1126; Dec. Dig. 510.] 4. CRIMINAL LAW 407-EVIDENCE-ADMISSIONS-FAILURE TO DENY. Where, in an action for murder, it was fairly apparent that the, witness overheard the whole conversation between the two defendants while in jail and believing themselves alone, and that the witness gave the substance of the entire conversation in his testimony, it was not error to admit a statement in the conversation; "You know you are the one that fired the shot," since under such circumstances it sufficiently appeared that the defendant so accused remained silent, when, if false, he would naturally have denied the charge. [Ed. Note.-For other cases, see Criminal see Criminal Law, Cent. Dig. §§ 898-902, 949, 968, 970, 971; Dec. Dig. 407.] 5. CRIMINAL LAW 424-HOMICIDE 174 Ernest Wilson and Bubber Chafin were convicted of murder, and they appeal. Reversed. John C. Duffy and Tom G. Skinner, both of Hopkinsville, for appellants. James Garnett, Atty. Gen., Chas. H. Morris and Robt. T. Caldwell, Asst. Attys. Gen., and W. T. Fowler, of Hopkinsville, for the Commonwealth. TURNER, J. Appellants, Ernest Wilson and Bubber Clafin, were jointly indicted charged with the murder of J. M. Renshaw as the result of a conspiracy alleged to have been entered into by them; the indictment charging that one of them did the shooting from which Renshaw died and that the other was present at the time aiding and abetting therein, but the one who did the shooting Upon their was unknown to the grand jury. joint trial they were each convicted and sentenced to the penitentiary for life, and they jointly prosecute this appeal. Renshaw lived a few miles south of Hopkinsville, on the Clarksville pike, and a short distance north of his home and in sight thereof was a bridge crossing Little river, over which he had to pass in going to Hopkinsville. On the afternoon of September 25, 1914, about 3:15 o'clock, he left his home alone in his buggy and started towards Hopkinsville. About the time he reached the bridge, or was just past it, a shot was heard in that vicinity. A short distance beyond the bridge he was met by persons in two or more vehicles, was bent over in his buggy, had dropped the lines, and seemed to be either sick or drunk, although his horse continued to trot slowly along. A short distance further on his son, who was going home from Hopkinsville, met him, and, seeing his condition, stopped the horse, took him back home, and immediately sent for a physician, when it was discovered that he had been shot in the back of the head about 11⁄2 inches back of the right ear. He never regained consciousness and died in about two weeks. A short distance north of the bridge is a depression in the road, where it is concealed from sight by trees or hedge, and it is at this point where the shot is supposed to have been fired. been fired. Renshaw at the time had about $20 in money upon his person, which had not been disturbed when his son met him. The appellants are shown by the evidence to have been very intimate friends and companions. Early that morning one of them went to the home of the other and called him out. They were later seen together on a railroad track some three-quarters of a mile 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. to refund some money which he had promis424; Homicide, Cent. Dig. §§ 359-371; Dec. Dig. 174.] ed to pay that day. He said he did not have 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 a cleat on one of his shoes such as are placed on baseball shoes, and Fowler testifies that Wilson at the time had on a pair of old baseball shoes, which seemed to be too small for him, and which were split. After the arrest of Wilson he told the deputy sheriff that he had some clothes at the home of Eva Chafin, a relative of Bubber Chafin, and when the deputy sheriff went to the home of Eva Chafin he found among other things one baseball shoe, which had been split. He could not find the other shoe, but directed the woman to hunt it up, and upon going back the following day found a baseball shoe on the fire, partially destroyed. son of a bitch. Within one hour before the shooting, probably within 30 minutes, Chafin was seen near the bridge, going in that direction, with a woman named Mattie Taylor, with whom he is shown to have been intimate. About the same time Wilson was seen approaching the bridge and near it. Within a very short time before the shot was fired two negro men were seen near the south abutment of the bridge, and a negro woman of the general description of Mattie Taylor was seen leaving there. Shortly after the shooting two negro men were seen about 100 yards below the bridge, as they dodged into the hedge along the river. Immediately 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 hastily along the railroad track. The south abutment of the bridge is in sight of the house of Renshaw, and he could be seen from there as he drove out of his place toward the pike. The top of the buggy in which Renshaw was riding was partially down, and the shot which killed him first passed through the top of the buggy and struck him in the head, ranging up; the top of the buggy being powder-burnt, as well as the back of Ren shaw's neck. It is the theory of the commonwealth that these two negroes, being in desperate need of money, had entered into a conspiracy to murder and rob any one that might happen along at this bridge at a favorable time, and that after they had shot Renshaw they were deterred from carrying out their purpose of robbery by the unexpected appearance of other persons along the highway. The tracks made by the two persons were so far apart as to indicate that they were running at the time, and the tracks made by one of them showed that he had a cleat on at least one of his shoes such as is placed on baseball shoes, and it is shown by the evidence that two or three days after the killing Wilson was wearing a pair of baseball shoes. On the Tuesday following the killing on Friday Wilson was informed by his employer, Fowler, that the tracks showed that one of the "Bubber says to Ernest, 'Have you got you a lawyer?' and Ernest told him, 'No,' he didn't need no lawyer; and Bubber said, 'You ought to get you one; and he said, 'I don't need no lawyer;' and Ernest said, 'You know you are the one that fired the shot;' and I never said nothself, and that is all I heard." ing myself, because I wasn't concerned in it my The witnesses who saw the two negro men at the bridge just a short time before the shooting did not know either of the appellants, and, having paid no particular attention to them, did not identify either one of them but the witness who saw Chafin in company with the woman going toward the bridge knew him well and positively identifies him, and the witness who saw Wilson about the same time going toward the bridge and near it knew him also and positively identifies him. Each of the defendants denied being at the bridge on that day, or having anything to do with the shooting of Renshaw; and they each relied upon an alibi, which they undertook separately to establish. Several witnesses testified for Chafin that during that day at different times he was at work in his father's tobacco field, and some of them said that he was there at about the time the crime was committed; on the contrary, the commonwealth in rebuttal introduced at least three witnesses who denied that Chafin was in the field at that time. For Wilson, in addition to his own statement, two witnesses were intro shooting he was at the house of Roy Carter; but this statement is denied by Carter and his family, some of whom stated that he was not there during that day. Five reasons are urged as grounds for reversal: (1) That the trial court erred in failing to instruct on the law of manslaughter and self-defense; (2) that it erred in giving an instruction on conspiracy; (3) that it erred in failing to give an instruction that it erred in failing to give an instruction conforming to the provisions of section 241 of the Criminal Code; (4) that it erred in admitting incompetent evidence against the defendants; and (5) that it erred in permitting improper argument to the jury by the attorneys representing the commonwealth. [1] The contention that there should have been an instruction upon manslaughter and self-defense is based upon the rule, many times declared by this court, that when there is no eyewitness to a homicide, and no one who saw the parties after they met on the occasion of the killing, the law covering murder, self-defense, and manslaughter should all be given to the jury in the instructions, in order to meet any state of fact which the jury might find from the circumstances in evidence to have existed; and that is unquestionably the rule when there is no evidence, either direct or circumstantial, from which the jury might infer that an altercation had taken place between the parties. But where all the evidence and all the physical facts show that there could have been no altercation or struggle, and that the decedent was stealthily shot from behind without notice, as in this case, the idea of selfdefense or manslaughter is positively precluded. In this case the uncontradicted evidence is that Renshaw, a few short moments before the shot was fired, was driving peacefully along the highway; that at the bridge which he had to cross there were two men; that when he was a short distance beyond the bridge a shot was fired from the rear, through the top of his buggy, into the back of his head; that two or three minutes thereafter he was seen in his buggy, but stooped over and resting upon the buggy, with the lines lying loose. It would be difficult to imagine under this evidence how an altercation could have taken place between Renshaw and the person or persons who killed him. In the case of Bast v. Commonwealth, 124 Ky. 747, 99 S. W. 978, 30 Ky. Law Rep. 967, all the authorities in this state were reviewed on this question, and the court, after an exhaustive investigation and analysis of all the cases, laid down the rule in this way: | physical facts are such as to preclude the idea that there was a struggle or any resistance ofhis life was taken, the trial court would be fered whatever by the deceased at the time that fully justified and warranted in refusing to give an instruction on self-defense. And again, where the physical facts, as in the case before us, are such as to preclude the idea or the possibility that the killing was the result of an accident, or that it was the result of a sudden affray, then the trial court would be warranted in refusing to give an instruction on the subjects of voluntary or involuntary manslaughter." The rule laid down in that case is just as applicable to the facts in evidence here as it was there. [2] The second contention is that the instruction on conspiracy should not have been given, for the reason that there was no evidence of a conspiracy. While it may be admitted that there was no direct evidence of a conspiracy, an analysis of the evidence already stated shows such facts and circumstances as authorized the jury to infer that there was a conspiracy. The fact that they were chums and were together almost every day; that one of them went to the home of the other on that morning and by signal called him out; that they left there together, and some time later, when money was demanded from one of them, which he did not have, he stated in the presence of the other that he would have some money before night or kill some son of a bitch; that they were seen that afternoon, a short time before the shooting, each approaching the bridge; that shortly thereafter a shot was fired, and two men were seen immediately running across the bridge and emerging from its southern entrance; that in two or three minutes thereafter two men answering to their general description were seen a short distance down the river from the bridge, and upon being discovered dodged into the bushes; the fact that the tracks of one of those men showed that the shoe he wore had a cleat on it, and that a day or two later one of them had on a pair of baseball shoes which had been slit down in front, and that one shoe answering this description was some time later found by an officer at a place where Wilson said he had some clothes; the fact that one of the defendants immediately after the killing disappeared from the vicinity of Hopkinsville, and that the other remained thereabouts, but was hidden in the daytime; the fact that shortly thereafter one of the defendants stated to a witness that he had shot a white man at Hopkinsville and was going to St. Louis; the fact that the same defendant stated to another witness that he had killed Mr. Renshaw; 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 circumfacts show that the homicide could not have stances which authorized the jury to believe occurred in a particular way, then it is not the duty of the trial court to give to the jury that there had been a prearranged plan be |