Commonwealth v. Walker ( 1905 )

Opinion by

Judge Settle

Reversing.

The appellee was indicted in the circuit court for feloniously issuing a warehouse receipt. The indictment is as follows: “The grand jury of the county of Anderson, in the name and by the authority of' the Commonwealth of Kentucky, accuse J. R. Walker of the crime of willfully, knowingly, feloniously and' fraudulently issuing whisky warehouse receipts for whisky as security for an indebtedness, .when the whisky so receipted for was not at the timé actually in store in the warehouse and under his control, committed in manner and form as follows to wit:The said J. R. Walker at the time hereinafter mentioned was a distiller of whisky with a distillery and warehouse known and called bonded warehouse, and said Walker did, in the county of Anderson, on the-20th day of July, 1901, and before the finding of this-indictment, unlawfully, willfully, knowingly, fraudulently and feloniously issue, sign and deliver to Winfrede Coal Co., a corporation duly and legally created under the laws of the State of West Virginia, a warehouse receipt for five barrels of whisky,. of the serial numbers 7,619, 7,620, 7,621, 7,622 and 7,623, which said whisky is stated in said warehouse receipt and entered into bond, and was then, as stated, in said warehouse receipt, in distillery bonded warehouse No. 16, Eighth district of Kentucky, subject to the order of said J. E. Walker, and said receipt was issued to said Winfrede Coal Co. to secure it in payment of a debt then due from said Walker, when in fact said J. E. Walker did not have in said distillery bonded warehouse No. 16, Eighth district of Kentucky, the whisky called for and described by serial numbers as hereinbefore stated in said warehouse, as he then well knew, when in truth and in fact there was no whisky of said serial numbers in said warehouse, and said Walker had not at said time manufactured or distilled whisky called for and described in said receipts, and for which said receipts were issued, and said whisky was not actually in store and under his control at said time, against the peace and dignity of the Commonwealth of Kentucky. E. F. Peake, Commonwealth’s Attorney Twelfth Judicial District.” A demurrer to the indictment was sustained by the court, and the indictment dismissed. Prom the judgment thus disposing of the indictment, "the Commonwealth has appealed.

It is said the demurrer was sustained upon two grounds: First, that the accusatory part of the indictment does not sufficiently describe the offense attempted to be charged; secondly, that the indictment does not charge either a statutory or common-law offense. We think the accusatory part of the indictment is sufficiently direct and certain as to the description of the offense charged. The offense is one created by statute. The statute does not give it a specific name. Therefore it was only necessary for the indictment to designate it by a brief general description in language of the same or like meaning: to that found in the statute, and this was done.

We .are also of opinion that the indictment charges a statutory offense, viz., the offense denounced by sec. 4772, Ky. Stats. 1903, which provides: “No-warehouseman, or other person, shall issue any receipt or voucher upon or for any goods, .wares, merchandise, produce, commodity, property or other thing of any description or character whatever, to any person or corporation, as security for any money loaned, or other indebtedness, unless such goods, wares, merchandise, produce, commodity, property or other thing so. receipted for shall be, at the time-of the issuing of such receipt, or voucher, the property of the warehouseman, and actually in store and under his control, and if there be a lien on the property then the character and extent of the lien shall be fully set forth and explained in the receipt or voucher. ’ ’

Sec. 4775 provides that - a warehouseman or other person convicted under section 4772 shall be fined in any sum not exceeding $5,000, or imprisoned in the penitentiary not less than two nor more than five years, in the discretion of the jury, and in addition gives to any person aggrieved by a violation of' the provisions of the statute a right of action against the offender for the damages thereby -sustained.

It is contended by counsel for appellee that he is-not a warehouseman in the meaning of the statute, supra, or so entitled in the indictment, and he can not therefore be proceeded against or punished for a violation of the provisions of the statute. We do not accept this view, for we can perceive no reason for holding that a distiller may not be a warehouseman. A distillery is rarely, if ever, conducted without a bonded warehouse for the storing of whisky,, and the distiller, who, for that purpose, owns or conducts such a warehouse in connection with his distillery, is as much a warehouseman as the owner of a warehouse used for storing goods or merchandise other than whisky. The indictment avers that appellee is a distiller “with a distillery and warehouse known and commonly called bonded warehouse.” This language in terms and effect means and charges that be, as a distiller, owns and conducts a warehouse, as well as a distillery. The indictment, therefore describes him as a warehouseman, though it does not specifically name him as such.

Sec. 2572a, Ky. Stats. 1903, defines the word “distiller,” and subsection 6 thereof recognizes him in the capacity of a warehouseman, and authorizes him to issue warehouse receipts; for it provides “that no person, firm or corporation shall issue or sign any warehouse receipt, or substitute for such receipt on whisky stored in a distillery or bonded warehouse in this Commonwealth, except the distiller, and any person other than the actual owner and operator of a distillery, who shall issue or sign any warehouse receipt or substitute therefor in violation of sec. 2 of this act shall be guilty of a felony, and, upon indictment and conviction, be confined in the penitentiary for a period of time not less than two. nor more than ten years, in the discretion of the jury.” It will be seen that the statute last quoted confines the right to issue warehouse receipts or substitutes therefor, on whisky stored in a distillery bonded warehouse, to the distiller; but sec. 4772 was intended to prevent any warehouseman, whether a distiller owning a bonded warehouse in which whisky is wont to be stored, or other person owning a warehouse-used for storing goods or merchandise other than whisky, from issuing a warehouse receipt as security for a loan or other indebtedness, upon or for property purporting or represented to be in his warehouse, when in fact it is not there, as is charged in the indictment in the case at bar.

We are of opinion that the indictment, in apt language and with sufficient certainty, charges appellee with an offense under the statute in question. Wherefore the judgment is reversed, and case remanded, with directions to the lower court to overrule the demurrer to the indictment and for further proceedings consistent with the .opinion.