266 Mo. 73 | Mo. | 1915
Defendant was tried in the criminal court of Jackson county upon the charge of embezzlement. The jury found him guilty and fixed his punishment at imprisonment in the penitentiary for a term of two years. Prom this conviction, after making the conventional motions, he has appealed.
The facts are brief and so far as they are material in the illumination of the points discussed in the opinion, run thus: Defendant was engaged in the real estate business in Kansas City. He had certain dealings in real estate with one Mrs. Edith McClintock, who is the prosecuting witness in the case, by which defendant acquired from Mrs. McClintock certain farms in Nebraska and at Polo, Missouri, and certain town property at Excelsior Springs, and Mrs. Mc-Clintock acquired from defendant a farm in Barton county, Missouri. All of this property seems to have been very heavily encumbered with mortgages. In addition to the property exchanged by Mrs. McClintock with defendant for the Barton county farm, the former owned a house and lot in Excelsior Springs which was encumbered for $1200, upon which encumbrance the holders were threatening foreclosure. The Clay
The proof shows that the check for the sum of $500 in question was payable to Mrs. McClintock, and that defendant, according to his own admissions upon the trial, indorsed such check by request of Mrs. Mc-Clintock and collected it in Kansas City, Missouri.
OPINION.
Upon the other contention, that of variance, the testimony of the witness Kilroy shows that defendant admitted that he had gotten $500 in money from Mrs. McClintock. But that is not all. The defendant testifying for himself and in answer to questions from his own counsel, says: “Q. This check [the check in controversy] that Mr. Jones gave you was for $500? A. Yes, sir. Q. Who was that made payable to? A. Payable to Mrs. McClintock. I called her up and told her I had it and I wanted her to indorse it. She said, ‘Put my name on it,’ and said for me to bring the balance of the money to her.”
The whole ease shows, if the witnesses for the State are to be believed — and the question of credibility is not for us, but for the triers of fact — that defendant was the agent of Mrs. McClintock to use the warranty deed and thereby to obtain this loan. He admits that she expressly made him her agent to indorse the check and bring her the money. He did indorse it and cash it, but other proof in the case shows he failed to bring her $200 of the money. If the jury believed this, and the sequel indicates that they did, it was, other jurisdictional and evidentiary matters being shown, sufficient to sustain the conviction.
The facts of the instant case regarded, we do not see wherein the case falls foul of the rule announced in the Mispagel case, and so see no reason to re-examine that case at this time. For according to defendant’s own admissions to the witness Kilroy and when testifying for himself, he indorsed this check at the request of the prosecuting witness who was the payee therein, and having so endorsed it “cashed”it, i. e., turned it into money; and this was the form of it when he failed to account to Mrs. McClintock for it.