268 Mo. 407 | Mo. | 1916
— On the 8th day of June, 1915, the prosecuting attorney of Pemiscot County, Missouri, filed in the circuit court of that county a duly verified information charging that the defendant fraudulently and feloniously made away with and secreted certain property of one S. G. Hayden, with intent to embezzle and convert same to his own use. Upon trial he was found “guilty of larceny as charged in the information,” and his punishment assessed at imprisonment in the penitentiary for a term of three years.
On the part of the State the evidence tends to prove that in December, 1912, and in accordance with defendant’s request that she permit him to handle her money for her, the prosecutrix, Mrs. Susan Hayden, delivered to defendant the'sum of $450, to be by him deposited by her in an alleged institution which he represented existed, and. which he stated would
The State offered some evidence for the purpose of showing that the purported certificate of deposit which was delivered to Mrs. Hayden was prepared at the defendant’s instance and in his office.
The evidence also discloses that at a different time the defendant secured two other sums of money from the prosecutrix, one amounting to $300, delivered to him in March, 1913, and for this transaction the defendant was also prosecuted and tried at another time and found guilty. It was upon this showing. that defendant based his claim to a discharge because of former jeopardy.
The defendant offered a number of witnesses who testified to his good reputation.
“One W. J. Burgess, became and was the bailee of four hundred and fifty dollars, good and lawful money of the United States, the personal property of Mrs. S. G. Hayden, then and there being and of the value of four hundred and fifty dollars, which said money was delivered to the said W. J. Burgess as bailee for depositing to the credit of the said S. G. Hayden, and being so the bailee thereof, the said W. J. Burgess, the said money, did then and there fraudulently and feloniously make way with and secrete with intent to embezzle and convert same to his own use; and so the said W. J. Burgess the said four hundred and fifty dollars, In manner and form aforesaid feloniously did steal, take and carry away.
“If any carrier, bailee or other person shall embezzle or convert to his own use, or make way with or secrete, with intent to embezzle or to convert to his own use, any money, goods, rights in action, property or valuable security or other effects which shall have been delivered to him, or shall have come into his possession or under his care as such bailee, although he shall not break any trunk, package, box or other thing in which he received them, he “shall, on conviction, be adjudged guilty of larceny and punished in the manner prescribed by law for stealing property of the nature or value of the articles so embezzled, taken or secreted.”
As heretofore held by this court (State v. Lentz, 184 Mo. 223; State v. Larew, 191 Mo. 192) this statute creates two distinct classes of offenses: (1) The offense of actual embezzlement or conversion; and (2), the offense of making away with and secreting property with the intent to embezzle or convert. Under the first subdivision it is unnecessary, in order to charge an offense, to allege more than the actual embezzlement and conversion of the property, no specific intent being coupled with the forbidden act. Under the second subdivision it is necessary, however, to allege that the prohibited act, that is, the making way with and secreting, was done with the specific intent expressed in the statute. [Cases supra.] There can be no doubt that, in order to sufficiently charge an offense under the second subdivision, the
The question then becomes, whether the phrase “with intent to embezzle and convert” sufficiently charge such a criminal intent. As heretofore pointed out in State v. Pate, post, p. 431, the term “convert,” when used alone, does not necessarily imply such a criminal intent, and, its use without other qualifying-words is ^insufficient to charge the fraudulent intent essential to the charge of embezzlement or fraudulent conversion. In 'that case it was pointed out that the term “convert” is not synonymous with “embezzle,” and that in order to make it so such qualifying terms as “felonious” or “fraudulent,” or others of similar import, must be used.
With the term “embezzle,” however, we are of a different opinion. Section 8057, Revised Statutes 1909, directs us to give to Words and phrases their plain or ordinary and usual sense, and with technical phrases having a peculiar and appropriate meaning-in law to give meaning according to their technical import. The term “embezzle” is a technical word, having a legal signification, and is defined as follows: “The fraudulent appropriation to his own »use or benefit of property or money entrusted to him by another.” [Black’s Law Diet., p. 418, and cases cited.] “Embezzlement is a fraudulent appropriation of another’s property by a person to whom it has been entrusted or into whose hands it has lawfully come.
At common law the crime of embezzlement did not exist, it being regarded merely as a breach of trust or duty. The same is wholly statutory, and a sort of a statutory larceny committed by persons who have lawfully secured possession of the property, and who afterwards criminally appropriate the same to their own use.
The act not being a crime at common law, and having no criminal signification thereunder, we are not hampered in- giving it its proper technical meaning as we are with terms and offenses, of common law meaning, as, for instance, the case of larceny, with which this court was dealing in State v. Rader, 262 Mo. 117. This distinction has heretofore been pointed out by this court in State v. Baker, 264 Mo. 339, wherein the court said (l. c. 354):
“While instruction one mentioned above does not contain the words ‘feloniously,’ nor does it by any circumlocution define this term, yet neither does the*416 statute which makes' the stealing of domestic fowls a felony, use the word ‘feloniously.’ This case therefore is clearly distinguishable from the case of State v. Rader, 262 Mo. 117, wherein out of deference to the definition of the ordinary crime of grand larceny as the Legislature had ordained it, the writer said that an instruction under the provisions of section 4535 ought either to contain the word ‘feloniously’ or define it with reference to the intent of the taking.”
To the instant subject we can appropriately apply the words of Walker, J., in his separate opinion in State v. Rader, supra: “The use of the omitted words of which complaint is made, is not only redundant, but tautological.” They would add nothing whatever to the clearness or force of the charge, but, to the contrary would seem, when analyzed, rather to confuse. It would be the equivalent of charging that the defendant converted with a feloniously felonious, or fraudulently fraudulént, intent. We are not disposed to give countenance to such a doctrine, and, in our opinion, the allegation that he did the prohibited act with the intent to embezzle was a sufficient charge of a felonious or otherwise fraudulent intent.
We are not unmindful that this court in State v. Schilb, 159 Mo. 130, reversed a judgment because the court failed in its instruction to specifically require the jury to find that the conversion was accompanied by a felonious or fraudulent intent, and notwithstanding that the instruction used the words “embezzle” and “convert.” In that case, however, the phrase which is decisive with us was not considered or discussed, the court merely holding, upon the strength of the case of State v. Cunningham, 154 Mo. 161, that such an intent must be found by the jury before a conviction could be had.
In the case of State v. Cunningham, supra, the instruction did not use the term “embezzle,” but
In State v. Obuchon, 159 Mo. 256, the court likewise criticised an instruction which omitted specific reference to a felonious or fraudulent intent. Our views are that in this case the instruction used terms which clearly required a finding of fraudulent intent, and that the same did not merit the criticism directed against it. To the extent that these two cases are in conflict with our present holding they should be and are overruled.
For reasons which we cannot understand, thé court did not instruct upon the offense charged, but instructed on another, towit, actual conversion and embezzlement, and told the jury that if they found that the defendant had actually embezzled and converted the property they should find him guilty of larceny. The offense charged in the information, and the one submitted to the jury, are entirely separate and distinct, as heretofore pointed out. The information does not charge that he embezzled and converted the property, but merely that he did other things with the intent to so embezzle and convert. The Bill of Rights entitles a person to be informed of the nature and cause of the accusation against him, and he cannot be brought into court to answer one charge,
We find that by section 4901, Revised Statutes 1909, it is expressly provided that if upon the trial of a person indicted for embezzlement, it is proved that he is guilty of larceny, he shall be found not guilty of embezzlement but guilty of larceny, and be punished as if he had been convicted upon an indictment for larceny; and if upon the trial of a person indicted for larceny it is proved that he is guilty of embezzlement, he shall be found not guilty of larceny but guilty of embezzlement; and punished as if convicted upon an indictment for embezzlement.
While it is true that section 4552, Revised Statutes 1909, provides that he shall be adjudged guilty of larceny, it further provides that he can be so
In the case of State v. Broderick, 7 Mo. App. 19, the defendant was indicted for grand larceny, and on trial he was found not guilty of that offense, but guilty of embezzlement. It was there insisted that because the statute provided that in case of conviction of embezzlement the defendant should be adjudged guilty of larceny and the jury had expressly found him not guilty of larceny, the verdict could not stand. The court however disposed of that contention in .the following manner (l. c. 21):
“It is further contended that the instruction was wrong in telling the jury they might convict the defendant of embezzlement. The statute does not say that upon such facts the jury shall find the defendant guilty of larceny, as is now claimed. On the contrary, the defendant is, on conviction, to be adjudged guilty of larceny, and to be punished in the same manner as if he had stolen the articles which he has not stolen, but has embezzled. The instruction was correct and the verdict properly followed the evidence and the facts, as the statute clearly means it should and as a verdict ought. The judgment or sentence following is prescribed by the statute. Here the jury, in effect, acquitted the appellant of grand larceny and found him guilty of the other charge, embezzlement.”
We are of the opinion that in cases under this section the jury should not find the defendant guilty of larceny, but should find him guilty, when the facts warrant, of the offense created by the statute, and then, upon such verdict of guilty, the court should adjudge him guilty of larceny.
"We have carefully examined both the record and the plea,- and, without lengthening the opinion with a statement of the disclosures, it is our opinion that the defendant has not been in former jeopardy on this charge, and that upon the showing made he was not entitled to his discharge on that ground. The plea is also insufficient in both form and substance. [State v. Collins, 180 S. W. 866; Washington v. State, 32 S. W. 694; Crocker v. State, 47 Ga. 568; Kelley’s Crim. Law & Prac. (3 Ed.), sec. 235; Bishop’s Directions and Forms (2 Ed.), sec. 1043.] The State’s evidence, if believed, is amply sufficient to support a verdict of guilty, but because of errors heretofore mentioned the judgment is reversed and the cause remanded.