October 10, 2012

Bryant v. Commonwealth, Laurel, 1902


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68 S.W. 846; 1902 Ky. LEXIS 480; 24 Ky. L. Rptr. 447

June 10, 1902, Decided

Appeal from circuit court, Laurel county.
Thomas Bryant was convicted of the offense of grand larceny, and he appeals.


COUNSEL: James Sparks, for appellant.

Clifton J. Pratt and McKenzie Todd, for the Commonwealth.



 [*846]  BURNAM, J. The grand jury of Laurel county returned an indictment against the appellant, Thomas Bryant, charging him with the crime of grand larceny, committed as follows: "The said Thomas Bryant on the 6th day of February, 1902, in the county aforesaid, and, before the finding of the indictment herein, did unlawfully, willfully, and feloniously take, steal, and carry away from the possession of the Louisville and Nashville R. R. Co. (a corporation duly incorporated under the laws of the commonwealth of Kentucky, doing business of a common carrier) one barrel of sugar, two cases of sirup, one box of oysters, and three of groceries (said boxes containing one box of gum, three dozen soap, one cap, two dozen hang nails, one box of slate pencils, two dozen 6x9 slates, two boxes of crayon, all of said goods being of the value of over twenty dollars, all of said goods being the personal property of Martha Hogg and Son, of Clay county, which packages of goods were  [**2] shipped by the Power Grocery Co., of Junction City, over the Knoxville Branch of the Louisville and Nashville R. R. Co., and in their depot at London, Kentucky, awaiting delivery to consignees, the said Bryant did unlawfully, willfully, and feloniously take, steal, and carry away said goods, with the intention of permanently, converting same to his, own use and benefit, and depriving the said Martha Hogg and Son of the use and benefit of same." Upon the trial in the circuit court he was convicted, and sentenced to imprisonment in the penitentiary for 18 months, and from that judgment he has appealed to this court.

The main ground relied on for reversal is that the trial court permitted the commonwealth to prove that the goods which the defendant was charged with having stolen were shipped by the Curry Grocery Company, of Junction City, when the indictment charges that they were shipped by the Power Grocery Company, of Junction City. It is insisted by counsel that, whilst it was unnecessary to have charged in the indictment by whom the goods were shipped, having done so the commonwealth cannot vary the charge by proof. Appellant also claims that, in the absence of testimony showing that  [**3] he did not have authority from Martha Hogg & Son to take possession of and sell the goods, he was entitled to a peremptory instruction to find him hot guilty. The doctrine is well settled that, in criminal cases, words which are merely formal in their character may be treated as surplusage and rejected, but that a descriptive, averment in the indictment must be proven as laid. See Whart. Am. Cr. Law (3d Ed.) 291; Rosc. Cr. Ev. 101; Clark v. Com., 55 Ky. 206.

The Words "which package of goods was shipped by the Power Grocery Co., of Junction City," are not descriptive of the articles which appellant is charged to have stolen. These articles are set out with great particularity in the indictment, and the above words are surplusage and immaterial, and were properly disregarded.

It appears from the testimony that in July, 1901, the goods, which appellant is charged to have stolen were received at London, consigned to Martha Hogg & Son, of Clay county, and had remained in the depot of the Louisville & Nashville Railroad Company, and in their charge, until they were stolen, in  [*847]  November "Goods in the hands of a bailee may ordinarily be described in the indictment as either the bailee's or  [**4] bailor's, at the election of the commonwealth; that is, each may be deemed the owner, within the law of larceny." See 2 Bish. New Cr. Law, 789. No testimony was offered by appellant in this case conducing to show that he had any authority from Martha Hogg & Son to take the goods from the depot. If such consent was given, it should have been taken advantage of by way of defense. See section 752, Bish. New Cr. Proc. The Louisville & Nashville Railroad Company, having control of the goods as bailee, had a special ownership therein. This being the case, it was only necessary to prove that the larceny was committed without its consent.

We perceive no error prejudicial to the substantial rights, of appellant, and the judgment is affirmed.

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