207 Mo. 589 | Mo. | 1907
— This is an appeal from a conviction of the defendant in the circuit court of Gentry county, for embezzlement as a bailee, under section 1914, Revised Statutes 1899'. The indictment contained three counts, the first charging embezzlement under said section, being the one upon which defendant was convicted; and the second also attempting to charge embezzlement under both sections 1912 and 1914; and the third count charging grand larceny. The second count was, upon motion, quashed, and after the trial was entered into, a nolle prosequi was entered as to both the second and third counts, and the cause was submitted to the jury on the first count alone.
The evidence showed that defendant was a retail jewelry merchant in the city of Stanberry, in said county, and had been dealing with and buying jewelry and diamonds from the C. B. Norton Jewelry Company of Kansas City for six or seven years.
On January 4, 1905, defendant wrote to this company the following letter or order:
“J. L. BETZ,
Jeweler and Optician,
Stanberry, Mo. 1-4-05.
“C. B. Norton Jewelry Co.,
Kansas City, Mo.
“Dear Sir:
“Please send me by exp. on Memo one or two nice diamonds, 1 to 1% Kt. and oblige,
“Tours very truly,
“J. L. Betz.”
In response to said order the company sent to defendant by express the four diamonds described in the indictment, together with the following hill:
“C. B. Norton, Pres, and Treas, H. N. Norton, Vice Pres. W. M. Lewis; Sec.
“Established 1873.
*595 ‘‘Bills not paid at maturity subject to sight draft particular attention paid to filling orders.
Goods sent by mail only by special request and at risk of party ordering,
‘ ‘ Consigned on memorandum- by “C. B. Norton Jewelry Company, Jobbers of Diamonds, Watches, Jewelry, Clocks, Silverware, Tools, Materials and Optical Goods.
‘ ‘ 1013 and 1015 Grand Ave. Bell and Home Tel., 2073
Main.
“Kansas City, Mo. 1-6-’05.
“ J. L. Betz,
“The goods described below are sent at your risk for examination and selection, but none are considered sold, nor does the title pass until a regular bill of sale has been sent you. Please make returns within — days of their receipt.
“1 Dia. 5252 11-4 l-64c. 135.00 170,86
1 Dia. 5819 11-16 l-64c. 138.00 148.78
1 Dia. 3550 1 l-8c. 125.00 140.63
1 Dia. 3503 11-12 l-16c. 140.00 218,75”
Upon cross-examination the president of the company testified as follows:
“Q. Mr. Norton, I believe you stated awhile ago that defendant’s Exhibit No. 1 is the bill which you sent to defendant with the shipment of this lot of diamonds? A. Yes, sir.
“Q. And how long had you been doing business with the defendant? A. Probably six or seven years.
“Q. You commenced doing business with him and selling him- goods when he was at Maitland, did you not? A. Yes, sir.
“Q. And continued there and after he moved to Stanberry? A. Yes, sir.
“Q. How many goods did you sell him during those years — approximately? Pew or many bills? A. Why, we sold him a good many goods.
*596 “Q. The prices named in this bill, to-wit, $170.86; 148.78140.63, and 218.75, were the wholesale prices oí these diamonds ? A. Yes, sir.
“Q. And you said in, answer to the court’s question, that the title to these diamonds were to remain in you until he made his selection? A. Until they were reported on.
“ Q. Until he made his selection, is what you said, is it not? A. It reads in there just exactly what it is.
“Q. Then this printed matter here in this bill-head constitutes the only agreement or arrangement you had with Mr. Betz? A. Yes, sir.
“By the Court: You mean arrangement or agreement under which the goods were shipped to him? A. Under which the goods were shipped to him. The letter says ‘memorandum’’ just exactly as the bill says.
“Q. Mr. Norton, you had many times, in the six or seven years intervening before the sending to Mr. Betz of this bill, sent him goods on like bills, had you not? A. Yes, sir.
“Q. And he would either return the goods to you or pay for them? A. Yes, sir. Yes, sir.
“Q. And that course of dealing has existed for six or seven years ? A. Why, yes, sir.
“Q. And if you had received from Mr. Betz a draft for six hundred odd dollars — whatever it is — for these diamonds, he would have been within his rights, under your arrangement and dealing with him, would he not?
“By Mr. Showen, counsel for plaintiff: Wait a minute. If the- court please, we object to that for the reason that, if Mr. P'eery is going t.o stand on his bill of sale here, as he starts out, it certainly is not competent to show some other arrangement — if that is his defense.
“By the Court: Well, I don’t know about that— go ahead.
*597 . “Q. That is true, isn’t it, Mr. Norton? A. Yes, sir. We would have given a regular bill for it then.
“Q. You would have taken the money and they would have been his goods? A. Yes, sir, and sent him a regular bill for the goods.
“Q. They would have been his goods? A. They certainly would.
“Q. In other words, he had the option of returning the goods to you or paying for them? A. He had the option to return the goods or pay for them. He certainly did. Yes, sir.”
The defendant admitted upon the trial that he appropriated the goods mentioned in Exhibit No. 1, and described in the indictment, to his own use. Shortly after receiving the diamonds, he sold his stock of jewelry in Stanberry and went to Lincoln, Nebaska. The diamonds in question were pawned by him in that city, together with other diamonds of the value of $1,500 or $1,800. The defendant was arrested in Lincoln, and State’s witnesses, Norton and Solon, visited him in jail at that city and had a conversation with him. They asked defendant why he had done that way, and he replied: “I can’t tell you why I done this. I don’t understand why I did the way I did. You have always treated me all right, and I had no need to have used you in this way.”
At the close of the State’s case, the defendant asked a peremptory instruction directing the jury to acquit the defendant, which was refused, and exceptions duly saved. The defendant offered no evidence and made five requests to the court for instructions on certain propositions, the substance which was that under the law and the evidence the transaction between the C. B. Norton Jewelry Company and the defendant was a conditional sale or “sale or return” and not a bailment, and that defendant could not therefore be convicted as a bailee under section 1914. These re
Under the instructions the jury found the defendant guilty of embezzlement as a bailee under the first count of the indictment and assessed his punishment at two years’ imprisonment in the penitentiary. In due time defendant filed his motion for a new trial, alleging numerous grounds therefor. This motion was continued until the next December, 1906, term of said court, when it was overruled. To which action of the court defendant duly excepted, and thereafter duly perfected his appeal to this court.
I. The learned counsel for the defendant rightfully, we think, urges that the main proposition for decision in this case is whether under the evidence in the case the defendant was a bailee of the four diamonds, which were sent to him by the Norton Jewelry Company on the 6th of January, 1905. If the transaction evidenced by the letter of the defendant to the Jewelry Company and their letter to him on the 6th of January, 1905, constituted a sale, then of course defendant was not a bailee and not subject to prosecution under section 1914, Revised Statutes 1899, as he would not answer the description of the person against which that section was levelled. The learned counsel insists that this transaction as shown by the correspondence between
1 Dia. 5252 11-4 l-64e. 135.00 170.86
1 Dia. 5819 11-16 l-64c. 138.00' 148.78
1 Dia. 3550 11-8. 125.00 140.63
1 Dia. 3503 11-12 l-16c. 140.00 218.75.”
Now, was this an option to purchase if he was satisfied with the diamonds, or was it a sale of these four diamonds with an option to return them if he should not like them? In our opinion, it was but an option to purchase if he liked them or any one of them or any number of them. He had not requested the company to send him more than two diamonds. Obviously there had been no agreement as to the price of either one of the diamonds and a delivery of a specific diamond to him with the privilege of returning the same
As already seen in Hunt v. Wyman, 100 Mass. 198, the title to the diamonds under this agreement did not pass until the defendant exercised his option and selected one or more of them and advised the Norton Jewelry Company of his selection. In this connection, we are referred by the learned counsel to that class of cases in which it is said that if the person to whom the property is delivered has the option to pay for it in money or other property or restore it, such option is inconsistent with the character of bailment and the transaction is in law a sale regardless of what the parties to the transaction may have called it or have thought it to be, but if we are right in holding that these diamonds were delivered to the defendant under a special agreement for his examination and selection, then clearly, in our opinion, this was but an option to purchase at the prices designated in the letter of the Jewelry Company to the defendant, and it was entirely competent for the company to reserve, as it did, the title, and to notify the defendant that these goods were not sold until he had made his selection and notified the company and received hi's bill of sale for the same. There was nothing offensive to sound morals or to any
Nor do we agree with the defendant that the fact that these goods were consigned to him at his risk was conclusive that the transaction was a sale and not bailment. As was said in Sturm v. Boker, 150 U. S. l. c. 330, “The defendant’s common law responsibility as bailee exempted him from liability for loss of the consigned goods arising from inevitable accident.' A bailee may, however, enlarge his legal responsibility by contract, express or fairly implied, and render himself liable for the loss or destruction of the goods committed to his care — the bailment or compensation to be received therefor being a sufficient consideration for such an undertaking.”
II. But it is urged that the first instruction of the court was erroneous in telling the jury that the defendant under the circumstances recited in it ‘ ‘ thereby becomes the bailee of such Jewelry Company as to all but two of the diamonds,” and if the defendant “without the consent of the said Jewelry Company appropriated to his own use the two diamonds in excess of the number ordered by him each being then and there of the value of thirty dollars or more, then they would find him guilty.” It is argued that as all of the diamonds were shipped at one time in one package and under one bill and with the regular wholesale price
In our opinion, there is no reversible error in the record and the testimony was ample to sustain the charge in the indictment, and the judgment of the circuit court must be and is affirmed.