October 1, 2012

Commonwealth v. Smith, Pulaski, 1904



82 S.W. 236; 1904 Ky. LEXIS 362; 26 Ky. L. Rptr. 517

September 23, 1904, Decided

PRIOR HISTORY:  [**1]  Appeal from Circuit Court, Pulaski County. "Not to be officially reported." Joe Smith was indicted for embezzlement, and from a judgment sustaining a general demurrer thereto the commonwealth appeals.


COUNSEL: J. N. Sharp, for the Commonwealth.




 [*237]  BURNAM, C. J. - The appellee, Joe Smith, was indicted under section 1203 of the Kentucky Statutes of 1903 for embezzlement. The specific charge is: "That he willfully embezzled and fraudulently converted to his own use $1, currency of the United States, which was then and there subject of larceny, which sum of money $1 with other money had been intrusted to him, the said Smith, by Lola Davis, to be delivered by him to Archie Davis, which delivery to the said Archie Davis, he, the said Smith, then and there undertook for hire." A general demurrer was sustained to the indictment, upon the ground that the money embezzled was not sufficient to constitute the crime of grand larceny, and the commonwealth has appealed.

The statute is as follows: "If any carrier, porter, or other person to whom money or other property or thing which may be the subject of larceny may be delivered, to be carried for hire, or any other person, who may be  [**2] intrusted with such property, embezzle or fraudulently convert to his own use, or secrete with intent to do so, any such property, either in mass or otherwise, before delivery thereof at the place or to the person to whom the same were to be delivered, he shall be confined in the penitentiary not less than one nor more than five years." Under this section of the statute, the value of the money or other property fraudulently converted is immaterial. The crime consists in the fraudulent appropriation, and embraces all persons who are guilty of fraudulently secreting or converting to their own use the money or property of others intrusted to them, or placed in their hands for the purpose of being carried or delivered to another, without regard to the value thereof. See Johnson v. Commonwealth, 68 Ky. 430, 5 Bush, 430; Jackson v. Commonwealth, 86 Ky. 1, 4 S. W. 685, 9 Ky. L. Rptr. 265; Warmoth v. Commonwealth, 81 Ky. 133, 4 Ky. L. Rptr. 937. The facts constituting the offense are we think sufficiently stated in the indictment, and the court erred in sustaining the demurrer thereto.

Judgment reversed, and cause remanded for proceedings consistent.

P 1. See Embezzlement, vol. 18, Cent. Dig. §§ 5, 43.

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