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been certified to him for collection was a neces- a decision by the circuit court shall not sussary condition precedent to his embezzling it. pend the proceedings in the case.

[Ed. Note. For other cases, see Embezzlement, Cent. Dig. 8 7; Dec. Dig. 9.]

Section 337, supra, provides that an appeal 14. CRIMINAL LAW Ow371 - EVIDENCE-Mo- by the commonwealth's attorney must be takTIVE-OTHER CRIMINAL ACTS.

en at the term at which the decision is renIn a prosecution for crime, the commission dered. An appeal may be taken by the comby defendant of other criminal acts of the same monwealth from the decisions of the circuit stantive testimony of defendant's guilt, but only court when a mistrial has been had, as in as indicating motive and intent.

this case, and even when an acquittal of the [Ed. Note. For other cases, see Criminal accused is the result of the trial, if the atLaw, Cent. Dig. 88 830–832; Dec. Dig. Es torney for the commonwealth and the Attor371.)

ney General shall be of the opinion that an 15. CRIMINAL LAW Ow561-EVIDENCE-BUR

error to the prejudice of the commonweaļth DEN OF PROOF.

The jury must acquit if they have a reason has been made by any decision of the circuit able doubt of defendant's guilt.

court and it is important for a correct admin[Ed. Note.-For other cases, see Criminal istration of the criminal law that this court Law, Cent. Dig. § 1267; Dec. Dig. Omw 561.)

should review the decision. The reason for Appeal from Circuit Court, Graves County. the legislation is apparent, when it is con

Prosecution of W. L. Brand by the Com-sidered that, if a decision prejudicial to the monwealth for embezzlement. There was a commonwealth results in the acquittal of the failure by the jury to reach a verdict on ac-accused, he cannot be required again to uncount of the disagreement, and the Common- dergo a trial, however erroneously or miswealth appeals, as provided by Cr. Code takingly his acquittal was brought about. Prac. $$ 335, 337. Opinion ordered certified the right of the accused to an appeal, howto the circuit court.

ever, is different. He suffers no harm unless H. J. Moorman, of Mayfield, and Samuel H. he is convicted, and, if he suffers conviction,

H. J. Moorman, of Mayfield, and Samuel H. he may appeal from the final judgment and Crossland, of Paducah, for the Commonwealth. Hester & Hester, of Mayfield, for bring up for review all of the errors which

are prejudicial to him in the proceedings. It appellee.

will be observed that the Code expressly pro

vides that the accused can appeal from a HURT, J. This is an appeal by the at- final judgment only. He loses nothing by torney for the commonwealth of Kentucky, this. He is granted an appeal from the final from decisions of the circuit court upon the judgment, but he cannot appeal before judgadmission and rejection of proof of facts of- ment against him and afterwards, too. Neifered to be given in evidence, and decisions ther can the accused prosecute a cross-apupon the giving of instructions to the jury peal, upon an appeal by the commonwealth, upon the trial of the appellee in the Graves for the purposes for which an appeal is alcircuit court, upon an indictment which

lowed to it. Smith v. Com., 5 Ky. Law Rep. charged him with the crime of embezzlement, 852; Riley v. Com., 55 S. W. 7, 21 Ky. Law as denounced by section 1205 of Ky. Statutes. Rep. 1406; Com. v. Matthews, 89 Ky. 287, 12 The trial resulted in a failure by the jurys. W. 333, 11 Ky. Law Rep. 505; Com. v. to arrive at a verdict on account of disagree- Bullock, 67 S. W. 992, 24 Ky. Law Rep. 78; ment as to the guilt of the accused, under Com. v. Hourigan, 89 Ky. 305, 12 S. W. 550, the evidence and instructions of the court, 11 Ky. Law Rep. 509; Com. v. Huber, 126 and the commonwealth's attorney has brought Ky. 456, 104 s. W. 282, 345, 31 Ky. Law the case here by appeal, as provided by sec- Rep. 845, 929. tions 335 and 337 of the Criminal Code, regu

[2] The commonwealth can, however, aplating procedure in criminal cases, insisting that it is important to the correct and uni peal only from decisions of the court which

are adverse to it. For the reasons stated, form administration of the criminal law that this court should determine the questions be only such decisions of the court below as

were adverse to the commonwealth and to fore the appellee is again put upon trial.

which the attorney for the commonwealth [1] The appellee made many objections and saved many exceptions to the decisions saved exceptions, will be considered. The in

dictment was based upon the accusation that of the court upon the trial adverse to him, the appellee was the sheriff of Graves counand insists that these decisions be also re- ty for the term beginning on the first Monview decisions and judgments of the circuit day of January, 1906, and that as such he view decisions and judgments of the circuit collected the tax due the county of Graves court, in criminal trials, is confined and lim- collected the tax due the county of Graves ited by the provisions of the Criminal Code, for the year 1906, amounting to the sum of and beyond the authority there granted this $1,031, which had been levied upon the francourt cannot go.

chise of the Illinois Central Railroad ComSection 335 of the Crim-chise of the Illinois Cen inal Code provides:

pany, and fraudulently converted it to his "An appeal shall only be taken on a final own use. To the indictment the appellee enjudgment, except on behalf of the common-tered a plea of not guilty. The proof showwealth. An appeal by the commonwealth from led that the tax was received by the appellee; that it was never charged to him in any made a report to the county court of the colsettlement made by him with a commissioner lection of the franchise tax, which he is of the fiscal court, nor was it accounted for charged with embezzling, at the time fixed in by him to the county in any way. The ap- the statute, thereafter, and his failure to do pellee admitted having received the tax, but so would be a fact tending to show that his denied the fraudulent conversion of it, and purpose was to conceal the fact of the colcontended that the tax had never been certi- lection and to convert it to his own use. Upfied by the county clerk to him for collec-on admission of the proof of appellee's failure tion; that he was in a low state of health to make such report, if objected to, or it is at the time he received the check from the requested, the court should admonish the jury railroad for it, and was practically unable to that it should only consider the evidence of either physically or mentally give his busi- such failure to report the collection as eviness any attention, and had no memory of dence tending to show the intent with which the transaction; that his settlements were appellee appropriated the money to his own made up by the commissioner of the fiscal use, if it did tend to prove such intent. court, without his presence or assistance; [6] Second. Over the objection of the atthat he did not know that he was not charg- torney for the commonwealth, the court pered with the tax until five or six years after- mitted appellee to introduce in evidence a ward, when the county was having an in- receipt given by B. W. Sullivan, and to make vestigation of the affairs of his office made, inquiries in regard to the giving of such rewhen for the first time he learned that he ceipt, and to examine witnesses as to the had not accounted for the tax; that he had handwriting of the receipt, and who had givduring his term of office paid all that the en it, and the cause of the ill feeling between commissioner of the fiscal court informed Sullivan and appellee growing out of the givhim that he was due the county, upon his ing of the receipt. All of this was error and settlements; that when he learned that he should have been excluded. had never accounted for the franchise tax, [7] Third. The appellee, over the objection and demand was made by the county of him of the attorney for the commonwealth, was for it, he was then financially unable to pay permitted to prove by M. B. Hollifield that it, and had no money with which to pay it as county attorney he had made an investigaThe commonwealth offered proof tending to tion of appellee's accounts with the county, show that the appellee made conversions of and had arrived at the conclusion that the the public money, in different amounts and franchise tax which appellee is accused of at different times, during each year of his embezzling had never been certified by the term of office, and that during his four-year county court clerk to the sheriff for collecterm, he failed to account to the county for tion, and that, by reason of such conclusion, about $14,000 of the public moneys. The he, as attorney for the county, had sued the manner of making this proof by the com- appellee for failure to perform his duty, and monwealth we do not pass upon, as the ques- not to recover the amount of the tax. This tions are not before us. This statement of was an opinion of the witness as to the exwhat the evidence tended to show is given istence or nonexistence of a material fact in for the purpose of determining the correct the case, and the introduction of an opinion ness of the decisions adverse to the common- that had been formed by the witness, instead wealth upon the admission and rejection of of proof of the facts upon which the jury evidence, and the decisions made in giving should make an opinion, and its admission instructions.

was error and should have been excluded. [3] The proof of the facts which this evi- [8] Fourth. The attorney for the commondence seems to have been offered to show wealth offered to put in evidence the pleadwas admitted under the rule that in a prose- ings of a suit, which it was claimed was a cution for embezzlement where the accused suit by the sureties of appellee in his official relies for a defense upon absence of intent bonds, against him, seeking to recover sums, upon his part to make the fraudulent con- which they were required to pay on account version, or that his act was the result of of his defalcations in his office, and to suboversight, accident, or mistake, evidence of ject certain property, either owned by appelother acts of embezzlement are admissible to lee or alleged to be owned by him, to the show guilty knowledge in the commission of satisfaction of his indebtedness to them. To the act charged. Morse v. Com., 129 Ky. 294, the admission of these pleadings the appellee 111 S. W. 714, 33 Ky. Law Rep. 831, 894. objected, and, his objection being sustained,

[4, 5] First. The attorney for the common the appellant excepted. There could be no wealth offered to prove, by the person who error of the court in this decision, as it does was clerk of the county court during appel- not appear that the allegations of the surelee's term of office, that the appellee had fail. ties in the suit could possibly have any releed to report to the county court the collec- vancy to the issues in this case. tions made by him of the public moneys, as [9, 10) Fifth. The appellee, in testifying required by section 4147 of Kentucky Stat- for himself upon the trial, was permitted, utes. Upon objection, the court excluded tes over the objection of the attorney for, the timony of such failures. This was error, as commonwealth, to state his financial condiit was the duty of appellee, as sheriff, to have tion, at the time he says that he learned that

the franchise tax, which he is accused of em- [13] Eighth. The court gave to the jury bezzling, had never been charged to him in three instructions, to each of which the atany settlement of his accounts, and had not torney for the commonwealth objected, and, been properly accounted for by him; and to his objection beirg overruled, he excepted. state that he then had no money nor property As to the first instruction, he insists that the which he could apply to the payment of the court was in error when it directed the jury, demand made upon him by the county; that with other things, that it must believe behis property had been sacrificed in the pay-yond a reasonable doubt that the franchise ment of debts which he owed to his former tax levied upon the Illinois Central Railroad bondsmen, as a surety for others; and to Company for the year 1906 was duly certified give in detail what had become of all the mon- by the Auditor of Public Accounts to the ey which he had acquired through the office clerk of the Graves county court, and by him of sheriff. In a prosecution for embezzle- was certified to the appellee, as sheriff, for ment, it is competent to be proven by the collection, before a verdict of guilty could be prosecution that a demand had been made of returned. The instruction followed the althe accused by the proper person for the pay- legations of the indictment, as to the cer. ment of the money which he is accused of tification of the tax by the Auditor of Public embezzling, as his refusal or failure to make Accounts to the county court clerk and by payment of the demand, in due course, to the him to the sheriff, and without such allegaowner, may be considered as evidence from tion in the indictment it would not have been which a fraudulent conversion may be in

sufficient. Before a prosecution could be ferred. Roberson, vol. 1, p. 655. The com- maintained against the appellee as sheriff,

. . monwealth avails itself of its right, in the for having, as such, embezzled the franchise case at bar, and made proof, that the county, taxes due the county from the railroad combefore the indictment, had made a demand of appellee for the payment of the tax to it. of the franchise tax must have been neces

pany, the money arising from the collection When it was proved the appellee had not paid the amount of the franchise tax, in due as the custodian of the funds of the county.

sarily legally in his possession and custody course, and failed upon demand to pay it, The sheriff is not authorized to collect the this proof was such, from which it could be franchise tax of a railroad until it has been inferred that he had fraudulently converted the money. It was then admissible for him certified to him for collection, and the railto rebut the inference by such facts as would and be acquitted of its obligation for said

road company cannot pay same to the sheriff tend to show that at the time he learned, according to his statement, that he had not ac

tax until such certification takes place. Such counted for the tax, he was not financially a tax due a county is not due until the railable to do so. While it was not proper, in

road company has received notice for 30 his examination in chief, to allow him to give days from the officer authorized to collect it. in detail what had become of his money and If the sheriff should collect same without in detail what had become of his money and first being authorized, as provided by law, property, he should be allowed to show that first being authorized, as provided by law, at the time he learned, according to his state- he would be the custodian of the money of ment, that he had by oversight or mistake the railroad, and not the county. Ky. Statconverted the money to his own use, or to utes, $$ 4067, 4077, 4103; Com. v. Alexander, that of another, he had no money or prop- 129 Ky. 430, 112 S. W. 586, 33 Ky. Law Rep. erty, and could not make payment.

971; Com. v. Baske, 124 Ky. 468, 99 S. W. [11] Sixth. The court permitted appellee 316, 30 Ky. Law Rep. 400, 11 L. R. A. (N. S.) to prove that at and about the time he re- 1104; Whaley v. Com., 110 Ky. 154, 61 S. W. ceived the tax, which he is accused of em- 35, 23 Ky. Law Rep. 1292; Com. v. Stone, bezzling, he suffered greatly from his nervous 114 Ky. 511, 71 S. W. 428, 24 Ky. Law Ren. condition and was unable to look after the 1297. affairs of his office. The commonwealth's at

[14] The second instruction directed the torney objected and saved exceptions to the jury, in substance, that it should not conruling of the court. This evidence was ad- sider the evidence of other acts of embezzlemissible in corroboration of his claim that ment of appellee, in connection with his he had no memory of receiving the tax, and office of sheriff, other than the one charged that there was an absence of a guilty knowl- in the indictment, as substantive testimony edge of having fraudulently converted the of appellee's guilt of the crime charged in the money.

indictment, but that such evidence was to be [12] Seventh. Appellee was permitted, over considered only as indicating the motive and objection, to prove by J. N. Harris that he intent of appellee, if the jury believed beyond had made an arrangement with one Sullivan, a reasonable doubt that it did so indicate. It who was a deputy of appellee, to take the would have been prejudicial error to the subbooks of Harris, who was a former sheriff, stantial rights of the appellee if the court and to collect the taxes yet unpaid to Har- had not given the instruction or a similar ris, and that Sullivan had never accounted to one. This has been so often held that it is him, and that he was unable to get his books needless to further consider it. back from Sullivan. This evidence was ir- [15] The third instruction directed the

doubt of appellee having been proven to be benefit of C. C. Bickel and others. Froin guilty.

an adverse decision, the attorneys appeal. The instructions substantially presented Affirmed. the law of the case upon the evidence heard.

A. P. Dodd, J. C. Dodd, and O'Doherty & It is therefore ordered that this opinion be Yonts, all of Louisville, for appellants. Tracertified to the circuit court.

bue, Doolan & Cox, of Louisville, for appellees Lewman and others. W. Pratt Dale,

of Louisville, for appellees Bickel and others. O'DOHERTY & YONTS et al. v. BICKELT. K. Helm and Helm & Helm, all of Louiset al.

ville, for appellee Clark. Percy N. Booth, of (Court of Appeals of Kentucky. Nov. 16, 1915.) Louisville, for appellee Abrams. 1. ATTORNEY AND CLIENT On 133—COMPENSA

TION NECESSITY OF CONTRACTUAL RELA- HANNAH, J. During the year 1909 the TIONS.

As a general rule, an attorney cannot re- first National Bank of Louisville was found cover fees for his services from one who has to be in a precarious condition in respect of not employed him or authorized his employment, its solvency; and the owners of 2,914 of its although the services may have been beneficial shares of capital stock constituted and apto such person.

[Ed. Note. For other cases, see Attorney and pointed the Fidelity Trust Company their Client, Cent. Dig. $$ 305, 317–327; Dec. Dig. attorney in fact to make a sale of their holdww133.]

ings. 2. ATTORNEY AND CLIENT Om 133–COMPENSA- On September 4, 1909, the Fidelity Trust TION-CONTRACTUAL RELATIONS.

Company, as such attorney in fact, entered Holders of stock in an insolvent bank em- into a written contract for the sale of the ployed a trust company as their agent to make sale of the stock. The stock was sold to a bank shares mentioned, with the Kentucky Title on a contract providing for a certain absolute Savings Bank & Trust Company, which conpayment per share, and for additional pay-tract provided for an absolute payment of ments upon certain contingencies. The purchasing bank, however, refused to make such addi- $40 per share, and stipulated for certain adtional payments, and certain shareholders sued ditional payments to be made upon certain on the contract, employing plaintiffs as their contingencies connected with the amount attorneys, and, it appearing that a suit might that might be realized from the assets of the terminate successfully, other shareholders intervened, but were represented by other attor-defunct bank, the exact details of which are neys, although they had an opportunity to em complicated, and not here necessary to be ploy plaintifs. Å settlement was made be- dwelt upon. The purchasing bank paid the tween the claimants and purchasing bank, and part of the fund deposited in court. Plaintiffs, $40 per share, took over the assets of the whose contract with their clients provided for First National Bank, and proceeded to a a contingent fee of one-third of the amount re- liquidation thereof, but declined to make any covered, demanded compensation at the same further payments to the selling shareholders; rate from the other stockholders. Held that, there being no contractual relations with other its contention being that, upon a proper instockholders, they were not entitled to com-terpretation of its contract with their attorpensation, although their services had been of ney in fact, nothing more was due. benefit to the other stockholders.

Three of the shareholders, E. H. Ferguson, [Ed. Note. For other cases, see Attorney and Miss Nellie Peter, and C. C. McClarty, thereClient, Cent. Dig. $$ 305, 317–327; Dec. Dig. Om 133.]

upon employed counsel in the person of 3. ATTORNEY AND CLIENT Cw133—COMPENSA-Messrs. O'Doherty & Yonts and J. C. Dodd, TION-CONTRACTUAL RELATIONS.

for the purpose of enforcing further payWhere, through the efforts of attorneys for ments upon their shares so sold. A meeting certain stockholders, recovery was had upon a of all the shareholders who had deposited contract for the sale of the stock of a defunct bank, Ky. St. § 489, providing that in actions their shares with the Fidelity Trust Comfor the

recovery of money or property held in pany was called, at which the other sharejoint tenancy, coparcenary, or as tenants in holders were given an opportunity to employ common, if it shall be made to appear that one the counsel mentioned; but none of the othor more of the parties in interest have prosecuted for the benefit of others interested with er shareholders availed themselves of this themselves, and have been at expense in con- privilege. Some of them had personal counducting the same, such persons may be allowed sel under whose advice they were proceeding. a reasonable compensation for their trouble out of the funds recovered, did not entitle the at

In April, 1912, the three shareholders torneys to compensation as against stockholders heretofore named each filed a separate suit not employing them.

in the Jefferson circuit court against the pur[Ed. Note. For other cases, see Attorney and chasing bank to obtain further payments on Client, Cent. Dig. $$ 305, 317–327; Dec. Dig. the shares sold by them; the suits being mm 133.]

prosecuted by O'Doherty & Yonts and J. C. Appeal from Circuit Court, Jefferson Coun- Dodd under an agreement for a contingent ty, Chancery Branch, First Division.

fee equal to one-third of any recovery had Proceedings by O'Doherty & Yonts and therein. another, attorneys at law, against C. C. After these suits had progressed for some Bickel and others, for compensation out of months, it seemed likely from the rulings of a fund deposited in court recovered for thel the chancellor that a recovery, would eventually be had of some further payments upon finally agreed that the shareholders menthe shares so sold; and on March 20, 1913, tioned should permit one-third of the sums appellee Abrams became a party thereto by due to them to be paid into court pending intervention. He was claiming 32 of the 653 an adjudication of this dispute as to fees. shares which had been pooled by C. C. Mc- The three actions mentioned were then conClarty, the plaintiff in one of the actions men- solidated, and proceeded only upon the issue tioned, and was represented by Percy N. as to the right of the attorneys mentioned to Booth.

claim a fee from those shareholders who Later, on April 17, 1913, C. C. Bickel, who had intervened and who had employed atowned in his own right 602 shares in the torneys of their own. The chancellor upon pool, and also owned jointly with said E. H. the trial refused to adjudge to O'Doherty & Ferguson 544 shares (none of which, how-Yonts and J. C. Dodd any fee as against ever, were set up by Ferguson in his action), those shareholders, and the attorneys apalso became a party by intervention, suing peal from that judgment. on all of said shares. He was represented [1] 1. The general rule in this state is that by W. Pratt Dale.

an attorney cannot recover fees for his servOn May 27, 1913, an order was entered ices from one who has not employed him permitting the plaintiff Miss Nellie Peter to or authorized his employment, although the prosecute said actions for and on behalf of services may have been beneficial to such all the shareholders, presumably upon the person. assumption that section 25 of the Civil Code In Savings Bank of Cincinnati v. Benton, authorized such privilege.

2 Metc. 240, Benton was employed by a deOn May 29, 1913, as the result of negotia- fendant, Sandford, to represent him and his tions which had been pending for some days, codefendant, the Savings Bank of Cincinnati, the purchasing bank paid to the Fidelity The bank had its own counsel. In an action Trust Company the sum of $45,000 to await by Benton against the bank to recover comthe acceptance thereof by all the pooling pensation for his services, the plaintiff obshareholders; this sum being tendered in tained a verdict; and this court, in reversfull settlement of all of their claims.

ing the judgment, said: On June 5, 1913, Jas. Clark, Jr., one of the “If it [the bank] had counsel of its own empooling shareholders, applied for and ob-ployed, and the plaintiff had not been employed

by it, but had been employed only by Sandford, tained the rescission of the order of May and the bank, through its president, knew of 27, 1913, permitting Miss Peter to sue for all that employment, then, although the plaintiff's the shareholders, in so far as that order af-services may have been beneficial to the bank, fected him, and he became a party by inter- and received and accepted by it, yet it would

not thereby incur any liability to pay for them. vention. He was represented by T. K. Helm. To impose such liability upon it, under the cirOn the same day the same proceedings were cumstances of the case, it must have been aphad by H. P. Lewman, J. B. Lewman, and prised that it was looked to by the plaintiff for W. N. Cox, executors of G. W. Lewman, H. P. compensation for his services, and afterwards

received them, without informing him that it Lewman, J. B. Lewman, W. N. Cox, and would not pay for them.” Josephine L. Cox, and they became parties

Of course, this general rule is subject to by intervention, being represented by Trabue, the qualification that the acceptance of or Doolan & Cox.

acquiescence in the services rendered may By July 16, 1913, the acceptance by all the raise an implied promise to pay therefor. pooling shareholders of the $45,000 tendered Thus in Patterson v. Fleenor, 89 S. W. 705, in full satisfaction of their claims had been 28 Ky. Law Rep. 582, Patterson had employed obtained. It appears, however, that on June one Gillum as his attorney in an action in2, 1913, attorneys O'Doherty & Yonts and volving the title to land. Fleenor was a partJ. C. Dodd had written to each of the pooling ner of Gillum's at the inception of that litishareholders informing them of the offer of gation, or became such soon after, and Gil$45,000 in satisfaction of the claims of all lum while it was pending removed to another such shareholders, and notifying them that

state. Fleenor continued to conduct the in the event of an acceptance of this offer case, with the knowledge and consent of each of such shareholders would be expected Patterson. This court held that, under to pay to them a fee equal to one-third of these circumstances, an agreement on the the recovery, the same as that agreed upon part of Patterson to pay for the services so by the three plaintiffs in the actions hereto- rendered would be implied. To the same fore mentioned. When the consent of all the effect is Crawford v. Wiedemann, 158 Ky. shareholders to the settlement had been ob- 333, 164 S. W. 981, wherein this court said: tained, there remained only this dispute be

“Acquiescence by the client in the attorney's tween the attorneys for the plaintiffs in the conduct may supply the place of a request to original actions mentioned and Bickel, act, provided the case is such that the client Abrams, Clark, and the Lewmans (who had might reasonably know that he would be exbeen represented by other attorneys when pected to pay for the work; and the same would

be true they became parties by intervention) as to attorney to believe that his services were desirwhether any sum was due from them to the ed. 4 Cyc. 985." said attorneys O'Doherty & Yonts and Dodd. It must be apparent, however, that under In order to expedite the settlement, it was the spirit of the rules stated, the acquies

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