Adams Express Co. v. Commonwealth.

way the corporation is humanized, is made to see, hear, know, and exercise care, skill, judgment, and prudence, and is made amenable to the laws where intent, motive, and knowledge are elements of wrongs. The jury in this case evidently did not believe that appellant's agents were actually deceived as to the contents of the package. The following additional circumstances were in evidence, tending to show the agents to be culpable: Other packages shipped from the same distillery by the same express, unlabelled as to contents, had been declared upon falsely in order to deceive the carrier, and to evade the law. These agents had learned of the fact. They had been in the service for years, and knew the parties and their business and shipping methods, yet they took no precaution to protect themselves, their employer, or the public against a repetition of evasions of this statute. No other business was done at the point of shipment, except in connection with the distillery. The train stopped there for the accommodation mainly, if not solely, of that plant. It was in the habit of shipping whisky over that railroad and by express. It is quite likely that the agent was not deceived in fact; for, although it would probably have deceived him once or twice, he would become more wary, and would refuse to believe the trick which had been used successfully upon him before. The jury's verdict is not without a probable basis of truth. If every guilty man could demand a peremptory instruction merely because he said he was deceived, there would be a quick end to most jury trials. The jury was not deceived by the same facts. No one who is at all familiar with the history of the times, the cause of the enactment of the stringent laws of which the one now being discussed is a part, the

Adams Express Co. v. Commonwealth.

tricks and wiles of those who violate these laws, is often deceived by such matters.

The trial judge gave the jury the following instruction, among others: "If the jury further believe from the evidence that defendant's agents receiving and bringing said box of liquor from Bourbon, in Nelson county, to Springfield, in Washington county, Ky., and defendant's agent in delivering same to said Rogers acted in good faith, believing said box contained something other than whisky, you should find the defendant not guilty." This instruction was more favorable to the defendants perhaps than it was entitled to; for, in addition to the good faith of defendant's agents, they must have acted with ordinary care or due caution to avoid violation of the statute. As Bishop puts it (Bishop on Statutory Crimes, section 132): "One who while careful and circumspect is lead into a mistake of facts" may be excusable. We are not prepared to say that the carrier has a right to open and inspect, or to require the shipper to submit to an inspection of, all goods shipped, unless the Legislature should so authorize, as we have no doubt it has the right to do; and, in the absence of such right of inspection, the carrier will not be bound to have more knowledge than he has or has notice of. But, where he has a reasonable suspicion that a shipper is attempting to use his vehicle to violate a law of the land, he may, as he ought, require enough evidence of the legality of the shipment to satisfy a reasonably prudent mind that the suspicion was not well founded. Authorities are cited by appellant, in some of which the ground is stated as that relied on for denying the right of inspection that it would be a burden to commerce. The State and federal governments have done much to foster commerce,

Adams Express Co. v. Commonwealth.

and the public policy has been upheld. But the statute in question here is not for the benefit of commerce. It rests upon a different conception. The Legislature is aiming to protect men, women, and children from the vices of an article of commerce, which is deemed by the Legislature an evil, and in doing so they have attempted to put a check upon a vehicle of commerce. The legislation is anti-commercial. It puts the peace and good order of society above its commerce in this particular. In construing and applying the statute, if the courts devitalize it by subordinating it to the supposed interests of commerce, the manifest legislative intent would be frustrated which is contrary to every allowable rule of statutory construction. Yet we do not go so far as to say that the carrier may require all shipments to be subjected to its inspection before undertaking to deliver them. But we do not say that, when the carrier knows that the article is contraband, it must be rejected, no matter what the shipper says to the contrary, and, if the carrier believes upon reasonable grounds that it is contrabrand, he may require reasonable assurances that it is not; and, if an inspection is reasonable and practicable under the circumstances may require an inspection. Let them be as careful to obey the law as they are to further their own interests, and there will be little doubt but that the law will be observed.

Other questions presented are not deemed material. Judgment affirmed.

Commonwealth v. Alexander.

EMBEZZLEMENT.-September 23.

Commonwealth v. Alexander

Appeal from Owen Circuit Court.

J. W. CAMMACK, Circuit Judge.

From a judgment sustaining a demurrer to the indictment the Commonwealth appeals-Affirmed.


Officers-Statutes-Construction.-Under Ky. Stats. 1903, section 1205, providing that, when a person having custody of any money belonging to the State or county shall willfully misappropriate the same, he shall be punished, etc., and section 4067, prohibiting a sheriff from receiving any tax until a copy of the assessor's books has been delivered to him by the county clerk, etc., and section 4241, defining the duties of the sheriff as to property omitted by the assessor from taxation, a sheriff embezzling money cof lected from taxpayers on property not assessed for taxation does not violate section 1205, which assumes that the officer is legally in possession of the money for the State or county, and then misappropriates it.

JAMES BREATHITT, Attorney General, and TOM B. McGREGOR, Assistant Attorney General, for appellant.

Our contention is:

1. It is not requisite that the Commonwealth's attorney or the county attorney should, either, sign in indictment.

2. That it was the province of the members of the grand jury, if they had actual knowledge of facts necessary to find an indictment against the accused they could do so in the absence of any witness whatever.

3. Section 120 of the Criminal Code requires only the names of the witnesses who testified before the grand jury to be written at the foot of the indictment, hence if none testified the names of none should appear thereon.

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Commonwealth v. Alexander.

4. The proper mode to set aside an indictment is by motion and not by demurrer.


Kentucky Statutes, secs. 1127; 123 Crim. Code, sec. 243, 107; Sims v. Commonwealth, 12 Ky. Law Rep., 215; Commonwealth v. Minor, 89 Ky., 555; McIntire v. Commonwealth, 24 Ky. Law Rep., 469; Crim. Code, sec. 157, 158; Kentucky Statutes, sec. 1207; Koberson's Crim Law & Procedure, sec. 461.

H. W. ALEXANDER, W. B. MOODY, W. A. LEE and H. G. BOTTS for appellee.


1. The indictment is insufficient and uncertain in form. (Commonwealth v. Fisher, 24 Ky. Law Rep., 300; Metropolitan Life Ins. Co. v. Miller, 71 S. W. (Ky.) 921; Bodley v. Commonwealth, 17 Ky. Law Rep., 561; Commonwealth v. Clifford, 96 Ky., 4; Words & Phrases, vol. 3, p. 2351; Commonwealth v. McClure, 20 Ky. Law Rep., 1568; Commonwealth v. Pate, 27 Ky. Law Rep., 624.)

2. The appropriation by a sheriff of money collected on unassessed property does not constitute embezzlement. (Commonwealth v. Young, 27 Ky. Law Rep., 851; Greenwell v. Commonwealth, 78 Ky., 321; Commonwealth v. Boske, 99 S. W. (Ky.) 317.) 3. See Criminal Code of Practice, sections 122 to 137 inclusive on the requisites of a good indictment.


Appellee was indicted in the Owen circuit court for the offense of embezzlement. The court sustained a demurrer to the indictment, and the Commonwealth appeals. The indictment was evidently drawn to cover the offense defined by section 1205 of the Kentucky Statutes of 1903. In substance, appellee was charged in the indictment with having collected from divers taxpayers of the county the sum of $2,286 during the year 1898; that he feloniously, knowingly, and

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