171 Mo. 477 | Mo. Ct. App. | 1903
On May 5, 1902, H. S. Hadley, prosecuting attorney of Jackson county, filed in the criminal court of Jackson county, at Kansas City, an information based upon section 1912, Revised Statutes 1899, as follows, ommitting formal parts:
4 4 Now comes Herbert S. Hadley, prosecuting attor*480 ney for the State of Missouri, in and for the body of the county of Jackson, and upon his official oath informs the court, that J. L. Brown, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on February 7, 1902, at the county of Jackson, State aforesaid, being then and there the agent, clerk, collector and servant of Eugene F. Hardwick, a private person, the said J. L. Brown (not being then and there a person under the age of sixteen yeai*s), then and there by virtue of such employment and office of agent, clerk, collector and servant, as aforesaid, did have, receive and take into his possession and under his care and control certain money to the amount of one thousand dollars, then and there lawful money of the United States, but the description of which said money is to the said prosecuting attorney unknown, and which said money was then and there-' of the value of one thousand dollars, and then and there was the money and personal property of the said Eugene F. Hardwick, a private person, as aforesaid, the employer of him, the said J. L. Brown, and that the said J. L. Brown the said money then and there unlawfully, feloniously, fraudulently and intentionally did embezzle and convert to his own use, without the assent of the said Eugene F. Hardwick, a private person, as aforesaid, the owner of said money, and with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the said Eugene F. Hardwick, a private person, as aforesaid, of the use thereof; against the peace and dignity of the State. ’ ’
Appellant was put upon his trial, which resulted in a verdict of guilty, and his punishment assessed at imprisonment in the penitentiary for five years. Motions for new trial, and in arrest of judgment, were filed in due time, both of which were'by the court overruled, and this case reaches here by appeal.
It will be observed that one of the essential elements of the offense as charged in this information, is, that defendant must occupy the relation of agent, clerk, collector or servant of Eugene F. Hardwick. In other
To reach a clear understanding of this most vital question involved in this case, it will be necessary to note the testimony offered by the State to support the essential charge in the information, “that defendant was in this transaction acting as the agent of Hard-wick. ’ ’ It appears from the testimony that J. L. Brown &.Co. were doing business in Kansas City, Missouri. On February 7, 1902, E. F. Hardwick, the prosecuting witness in this case, sent the following telegram to J. L. Brown & Co.:
“Alva, Okla., 2-7, 1902.
“ J. L. Brown & Co., 554 Gibralter Bldg., K. C., Mo.:
“Buy me one thousand bbl. July pork. Will have Exchange Natl. Bank wire you the money.
“E. F. Hardwick.”
On the same day the Exchange National Bank of Alva, Oklahoma, at Mr. Hardwick’s direction, wired defendant that it would pay his (defendant’s) draft on E. F. Hardwick for one thousand dollars.
On the same day the defendant drew a draft .on said Hardwick for one thousand dollars and attaching the telegram from the bank deposited the same to. his credit in Traders’ Bank of Kansas City, Missouri. This draft was duly paid February 10th by the Oklahoma
On the 7th day of February, after deposit of said draft, etc., defendant wrote to Mr. Hardwick the following letter:
“ J. L. Brown & Co. Grain, Provisions, Stocks and Bonds. Municipal and Investment Securities. Gibralter Building.
“Kansas City, Mo., Feb. 7, 1902.
‘ ‘ Mr. E. F. Hardwick, Alva, Okla.:
“Dear Sir — We have your telegram to buy 1,000 barrels Chgo. July pork and, on receipt of telegram from bank, we executed your order for same as per inclosed contract. We thank you very much for the order, and hope that the results of same will be such as to insure further orders from you.
“Yours very truly,
“J. L. Brown.”
The contract mentioned as inclosed is as follows:
“J. L. Brown, Grain, Provisions and Stocks. G-ibr alter Building. ’ ’
“Kansas City, Mo., 2-7-02.
‘ ‘ Mr. E. F. Hardwick:
“You have this day bought from us at regular commission, less than the prices named in this memo., one thousand barrels Chicago pork, at $16.05 per bbl. for delivery in July.
“Margins deposited with us, $1,000.
‘ ‘ Notice : All contracts made with us for the purchase or sale of grain, provisions and stocks made with us or through us are subject to the rules and regulations of the Board of Trade or Stock Exchange in the city where delivery is to be made, and we hereby agree to receive all property sold to us or through us and to deliver all property bought from us or through us at maturity of contract, and we will not accept business under any other conditions, and the trades above recorded are made with this understanding. We also*483 reserve the right to close any trade made with us, or through us, without notice, if the money in our hands is, in our judgment, insufficient to protect the trade.
‘ ‘ Original.
“ J. L. Brown & Co.,
“Per J. L. B.”
The prosecuting witness, E. F. Hardwick, further testifies that in the same letter containing the contract, was inclosed a pamphlet, indorsed, “How to Speculate in Crains.’’
On April 28, 1902, Hardwick appeared at the office of J. L. Brown & Co., and his testimony at that time is as follows:
“Q. Did yok call on Mr. Brown? A. Yes, sir: on the 28th of April, at his office in Cibraltar Building, I introduced myself, told him I had some deals with him, and I wanted to close them up, and he said ‘all right,’ and he stepped to the telephone and talked. I asked him if he had closed it out, and he said he had; I asked him at what, and he said seventeen twelve; $17.12 a barrel. Come around at two o’clock and get your money. I told him I wanted my money now, it is customary. He said other concerns had an hour or two, and he ought to have that time. I told him I wanted my money right now. I told him I would stay there until he did get the money.
“Q. How much did it amount to, if it closed at $17.12? A. The full amount would amount to $3,770, including the $2,000 I paid him. The rest would be the profit on the pork. Finally he said he couldn’t get the money unless he could get out, he had some friends. I told him I would be there the next day and expect .the money. I never seen anything more of him until he was arrested.
“Q. I show you a book ‘How to Speculate in Crain, by J. L. Brown.’ Did you get that book from J. L. Brown? A. Yes, sir; or one like it. Eeceived it through the mail, sometime between the 7th of February and the 28th of April. It was after this $1,000 order was placed.
*484 “ Q. Did you receive any of the money you deposited with him? A. No, sir.
“Q. Or any part of it? A. No, sir.”
This testimony of Hardwick was substantially corroborated by witness Bernard Holsmark. There is a volume of other testimony offered by the State all tending to show that the money was converted to the use of defendant, and that E. F. Hardwick was defrauded out of it in this transaction, but it is not necessary to quote it here, as it does not shed any light upon the question under immediate consideration. It must further be observed that in order to constitute the offense as charged, the relationship of principal and agent had to exist at the time the money was paid to the defendant. This is conceded by respondent, in this language as used in the brief:
“It was never contended by the State that this embezzlement took place when J. L. Brown failed to pay over to Hardwick the proceeds of this deal after it was ‘closed out’ on April 28th; the embezzlement occurred when Brown received Hardwick’s money under specific instructions and immediately converted it to his own use.”
This being conceded, we must look to what occurred between these parties prior and up to the time of the payment of the 'money. The first communication is the telegram offered in evidence, which directed J. L. Brown & Co. to make the purchase of pork.. “Buy me one thousand bbl. July pórk.” . Defendant answered this telegram by letter of February 7,1902, in which defendant states that he executed the order as per contract inclosed. It is conceded by the State that the contract must control; but it contends that it must be construed in connection with the letter of the defendant, “that he had executed the order to buy so many bbl. of pork, ” and that it was for the jury to say whether or not the contract was a mere form to cover up defendant’s real purpose, as shown by the results.
We will say now that this contention by the State can not be maintained. It may be true that defendant’s
Whatever the relations between the parties, Hard-wick and Brown, they were created by the written instruments, introduced in evidence; that is to say, the telegram and the letter inclosing the contract and the contract itself. As to the acceptance of the contract and consenting to it, on the part of Hardwick, the disclosures in this record settle that beyond all question. Hardwick admits the receipt of the contract; it was received before the one thousand dollars, charged to have been embezzled, was paid to defendant. He admits that he read it over, made no objections to defendant as to the form of the contract, and it is not pretended that he did not understand its terms. He evidently did not expect from his telegram that the de
“The court instructs the jury that if you find and believe from the evidence that the witness Hardwick bought of the defendant one thousand barrels of Chi*487 cago pork, July delivery, and that said Hardwick paid to said defendant one thousand dollars as a margin upon said purchase, and that said sale of said pork to said Hardwick was made by said defendant, and that said Hardwick consented and assented to the purchase of said pork from said defendant, then you will find the defendant not guilty.”
The court evidently based this instruction upon the contract inclosed in the letter from Brown to Hardwick. This was a misconception of the duty of the court; it was not for the jury, as before stated, to determine the legal effect of the contract. The telegram and the contract, which this court holds under the evidence was ratified by Hardwick, either established the relation of principal and agent between these parties, or it failed to do it, and it was the duty of the court to interpret this written evidence.
“The interpretation of writings is always for the court, except when they are ambiguous and the ambiguity must be solved by extrinsic unconceded facts, or when they are adduced merely as containing evidence of facts from which different inferences can be drawn, and then it is for the jury and not for the court to draw these inferences.” [Enterprise Soap Works v. Sayers, 55 Mo. App. 15; Chapman v. Railroad, 114 Mo. 542.]
In the first mentioned case, the contract of rescission was deduced from correspondence. The court declaring that such correspondence rescinded the contract, held that as to whether under the contract it was rescinded in a reasonable time, was submitted to the jury.
Another rule in the interpretation of contracts is that “persons are presumed to employ words in their usual sense and not otherwise,” unless there is something indicating a contrary intention. [Goode v. St. Louis, 113 Mo. 1. c. 271.]
Now this contract offered in evidence by the State uses the plain terms: “Mr. E. F. Hardwick: You have this day bought from us at the regular commission, less the price named in this ‘memo.’ one thousand
Our attention has been directed to the case of State v. Cunningham, 154 Mo. 161, as supporting the contention of the State in this case. An examination of that case reveals the fact that the principles announced are not in conflict with the views here expressed. In that case, a memorandum on a card was introduced, as tending to establish the relations between the parties. The court, speaking through Burgess, J., said that this card was a mere memorandum, was incomplete in itself to show a contract, and therefore, parol testimony was admissible to supply the omitted parts of the contract. In the case at bar, we are not left to conjecture as to what the contract was; it was complete in itself.
If Hardwick desired to make Brown his agent or broker to invest money for him, all he would have had to do, was simply to return his contract, or notify him that he did not approve of it. Then if he held the money and converted it to his own use, he could have very appropriately and justly been called upon to answer for the offense charged. It will not supply the deficiency in this testimony to say, that this contract was a scheme and a fraud on the part of defendant. It might be said with equal propriety, that Hardwick was engaged simply in gambling in futures, neither of which are legitimate answers to the questions in dispute.
It was very appropriately remarked by this court in the case of State v. Cameron, 117 Mo. 1. c. 648: “It is not the policy of the law to punish as a crime the making of every foolish or ill-considered agreement.”
We simply desire to add that neither is it the policy of the law to punish as criminal the violation of every
The judgment of the trial court will be reversed .and the defendant discharged.