acte r of decedent were not strictly within the record, where
they were made in reply to equally improper statements by
defendant's counsel, imputing a violent character to decedent,
the court's failure to exclude the statements was not preju-
dicial error. Idem....
.256
25. Same-Trial-Statments of Counsel-Action of Court.-In a
homicide case, where the court excluded statements of coun-
sel in argument that certain witnesses testified before the
coroner's jury and would have been contradicted by mem-
bers of that jury had their testimony differed on trial, and
instructed the jury not to consider it, such statements can-
not be considered prejudicial. Idem.....
..256
Same Reception of Evidence-Rebuttal.—In a homicide case,
testimony as to the location of the body of decedent im-
mediately after the killing, location of blood spots, and that
no arms were found on decedent, much of which might have
been introduced in chief, but which differed in many respects
from the other testimony in chief, was proper in rebuttal,
where its admission in rebuttal was made necessary by the
testimony of accused, which brought out new particulars as
to these matters. Idem......
.....257
27. Evidence-Identity of Accused-Admissibility. In a prosecu-
tion for embezzling money collected by defendant under an
assumed name as sales agent for a brewery, where defendant
denied that he had collected the money and attempted to
show that it was collected by another, evidence that defendant
sold liquor under an assumed name, as agent for the brewery,
and collected a part of the price, and of other transactions
in which defendant had assumed the same or a similar name,
as well as evidence identifying him as the person who cashed
the checks received for the liquor, was admissible to show
defendant's identity. Morse v. Commonwealth............294
28. Same-Other Offenses-Purpose-Identity of Accused.-Evi-
dence that defendant had been previously indicted under the
alleged assumed name, for another crime, was also admissible
to show his identity and as tending to show that he had
collected the money under the alleged assumed name.
Idem
....294
29. Same-Trial-Reception of Evidence-Grounds Assigned by
Trial Court-Erroneous Grounds-Effect. In a prosecution
for embezzlement, evidence that accused had collected money
under an assumed name, and of other transactions in which
he had assumed the same name, being admissible to establish
his identity, the fact that it was admitted by the trial court
to show a criminal intent was immaterial, where the errone-
ous ground of admission assigned did not prejudice accused.
Idem
...294
30. Same-Reception of Evidence-Restriction to Special Purpose
-Identity of Accused-Sufficiency of Instructions.-While, in
a prosecution for a crime committed under an assumed name,
the defense being that the crime was committed by another,
the state's evidence may take a wide range and show that
he committed the offense charged as well as other offenses
under the same name, to establish his identity, the jury's
consideration of such evidence should be limited to that
purpose, and in a prosecution for embezzling money under
an assumed name, an instruction that evidence that defend-
ant had also received money from others under the same
name, and had committed another offense under the same
name, could not be considered as evidence of guilt of the
embezzlement charged, was equivalent to instructing that it
could only be considered to establish the identity of accused.
Idem
.294
31. Embezzlement-Elements-Intent-Necessity of Proving.-
Under an indictment under Ky. St. 1903, section 1202, pro-
viding that any agent, etc., of any corporation who shall em-
bezzle or fraudulently convert to his own use, or the use of
another, money belonging to such corporation andi n his
possession as such agent, etc., shall be confined in the peni-
tentiary, etc., the Commonwealth must show that accused was
the agent of a corporation and in the course of his employ-
ment received money or property belonging to it, and that he
embezzled or fraudulently converted to his own
use the
money, etc., and, in an embezzlement prosecution, if accused,
an agent for a distilling company, a corporation, in the course
of his employment, received money and failed to pay it over,
the crime of embezzlement was complete, and it was unneces-
sary to introduce evidence showing the criminal intent, since
that would be presumed from the other facts shown.
Idem
32. Evidence Other Offenses-Admissibility.-Under
cumstances, evidence of other and distinct embezzlements and
other offenses committed by accused was not admissible for
the purpose of showing a criminal intent. Idem...........295
33. Elements-Intent-Necessity of Proving. It is not essential
that the Commonwealth introduce evidence to show a guilty
intent to secure a conviction for embezzlement, as an evil
intent is necessarily involved in the commission of embezzle-
ment, as well as most felonies, and the law will imply the
intent from the acts of accused when they are sufficient to
establish his guilt, on the ground that every person is re-
sponsible for the consequence of his acts. Idem.........295
34. Evidence Other Offenses-Admissibility-General Rule.-As
a general rule, in criminal cases the Commonwealth cannot
show that accused has committed other distinct crimes than
the one charged. Idem......
.....295
35. Same-Connected Acts-Admissibility.-If
criminal acts committed by accused are so connected in time,
locality, etc., that they form an inseparable transaction, and
the offense charged cannot be fully shown without giving the
particulars of the offenses, evidence of any or all of the con-
nected acts is admissible to prove the general plan. Idem.296
36. Same-Intent and Knowledge.-Where a crime charged is
admitted by accused, who seeks to avoid responsibility by
showing a lack of intent or guilty knowledge, evidence that
he has committed similar independent offenses before or
after that charged, which no apparent connection therewith,
is admissible to prove such intent and knowledge. Idem..296
37. Same-Auxiliary Offenses.-If the circumstances tend to
show that accused has committed an independent, dissimilar
crime to enable him to commit or conceal the offense charged,
evidence of the independent crime is admissible, when the
intent to commit or conceal the independent offense was the
motive of the offense charged. Idem....
.296
38. Same-Acts Showing System or Habit. Where a crime is
committed by the use of novel means, or in a particular
manner, evidence that accused has committed similar offenses
in the same manner is admissible to prove the identity of
persons from the similarity of the means adopted in com-
mitting the crimes. Idem....
......296
39. Same Guilty Knowledge.-In an embezzlement prosecution,
where the defense is want of intent, or that the criminal
act was the result of an accident, mistake, or oversight,
evidence of other embezzlements is admissible to show guty
knowledge in we commission of the act charged. Idem...296
40. Same-Order of Proof.-In criminal prosecutions, evidence
of the commission of offenses other than those charged, when
admissible, may be introduced whenever the nature of the
defense is disclosed that will permit it, and if in the opening
it appears that accused will rely on lack of intent or of
guilty knowledge, the Commonwealth may introduce such evi-
dence in chief; but if the nature of the defense is not dis-
closed until the evidence of accused is offered, such evidence
may be in rebuttal, which is the better practice. Idem...296
41. Evidence-Identity of Accused-Admissibility.-In a prosecu-
tion for embezzling money wrongfully collected from Staggen-
burg, while acting as the agent of a corporation, the fact
might be proved by other witnesses than Staggenburg that he
had represented himself to them as its agent. Idem.....296
42. Same Embezzlement from Corporation-Corporate Exist-
ence Manner of Proving. In a prosecution under Ky. St.
1903, section 1202, providing that if any agent, etc., of a
corporation shall embezzle money belonging to such corpóra-
tion, etc., which is in his possession as such agent, he shall
be guilty of a felony, sufficient evidence of the fact of incor-
poration is essential; but this may be shown by parol evi-
dence and general reputation that the concern is a corpora-
tion de facto, doing business as such. Idem...... ...297
43. Same-Necessity.-Under Ky. St. 1903, section 1202, making
it a felony for any officer, agent, etc., of any bank or cor-
poration to embezzle money in his possession belonging to
such bank or corporation, in a prosecution for embezzling
money or property of a bank, insurance company, or railroad
doing business in this state, it is unnecessary to show the
fact of incorporation, since, by statute, these concerns cannot
do business without being incorporated; but in prosecutions
for embezzlement from concerns that may do business either
as corporations, individuals, etc., the fact of incorporation
must be shown. Idem.....
.....297
44. Evidence Opinion Evidence-Comparison of Handwriting-
Standard of Comparison.-In an embezzlement prosecution,
where accused endeavored to show that money was collected
by another, evidence that the handwriting of a letter claimed
to have been written by such other was similar to that of
receipts shown to have been given by accused was properly
refused, where the genuineness of the alleged handwriting
of such other person was not admitted or established, as re-
quired by the statutes following Civil Code Prac., section 604,
relating to proving a writing by witnesses. Idem.......297
45. Ownership of Property.-In an embezzlement prosecution,
where accused was employed to sell liquor and collect only
a certain percentage of the purchase price as his salary, but
was not authorized to collect the remainder, the fact that
accused had a right to collect a part of the amount retained
by him did not prevent the collection and retention of more
than he had a right to collect from constituting embezzle-
ment. Idem....
.297.
46. Same Capacity in Which Property is Received.-Where
accused was employed to sell liquor and collect only a part
of the purchase price as his salary, in a prosecution for
embezzlement for collecting more than he was authorized to
collect the fact that accused had no authority as agent to
collect the money embezzled did not prevent his collection
thereof from being an embezzlement, as he was enabled to
collect the additional money by representing himself as
agent, and he cannot set up as a defense that he was not
authorized to collect it. Idem....
....297
47. Samé-Indictment-Value of Property-Proof and Variance.
-Though an indictment for embezzlement charged the taking
of a certain sum, a conviction may be had on proof of the
embezzlement of a less sum. Idem...
....298
48. Public Officers-Statutes-Construction.-Under Ky. St. 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 sec-
tion 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 collected 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 misappro-
priates it. Commonwealth v. Alexander.....
.429
49. Larceny-Evidence-Sufficiency.-Evidence held to sustain a
conviction for horse stealing. Smith v. Commonwealth...433
50. Same-Question for Jury.-In a trial for horse stealing, held
a question for the jury whether accused's hiring of the horses
was a pretense for the fraudulent purpose of converting them
to his own use, or a hiring in good faith, with intent to return
them to the owner. Idem...
.433
51. Same-Facts Constituting Larceny-"Horse
accused acquired possession of horses under a false and
fraudulent pretense of hiring them, and with a felonious intent
to convert them to his own use and to deprive the owner
permanently of them, he was guilty of horse stealing within
Ky. St. 1903, section 1195, without proof of a subsequent
sale or other wrongful disposition by accused; but, if he
hired the horses in good faith and was prevented from return-
ing them by the owner's act in having him arrested, he was
not guilty. Idem.....
.433
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