255 Mo. 201 | Mo. | 1914
Charged with and convicted of embezzling $2948.75 as the agent, attorney, collector and servant of one Ellen Cole, defendant appeals from a judgment fixing his pimishment at four years in the penitentiary. At the date of the alleged crime defendant was an attorney of Kansas City, Missouri, and Miss Ellen Cole, the prosecutrix, a spinster of the same city. She will hereafter be designated as the prosecutrix.
These notes had not been indorsed to Allen, but Re claimed that prosecutrix owed him $265.71, and demanded that his claim be paid before surrendering possession of the notes. The defendant paid to Allen the amount of his claim against prosecutrix. She seems to have understood this payment or advancement as a loan to her.
On January 30, 1911, she gave the defendant the following power of attorney, or order to Allen, her former attorney:
Know All Men. by These Presents, That I, Ella Cole, of the city of Kansas City, State ■ of Kansas, have made, constituted and appointed, and by these presents do make, constitute and appoint W. E. Casleton, true and lawful attorney for me in my name, place and stead to receive from George R. Allen of Kansas City, Kan., all papers, negotiable instruments, or other documents which the said Allen now holds and which are my property; and further to execute to said Allen receipt for same, which said receipt shall be full evidence as though I had received them myself, and further.
Dated this 30th day -of January, 1911.
ELLEN COLE.
The note for $3350 was secured by deed of trust on real estate situated in the State of Kansas, and forms the basis of this litigation. The two smaller notes may be dropped from further consideration. It will be observed that the $3350 note is not specifically named in the above quoted order or power of attorney which prosecutrix signed authorizing defendant to receive “all papers, negotiable instruments or other documents ’ ’ held by Allen. Prosecutrix contends that
On February 6, '1911, defendant forwarded to Allen the order or power of attorney, hereinbefore set out, together with a check for $265.71, accompanied by the following letter:
Feb. 6, 19 m
Hon. George It. Allen,
House of Reps., Topeka, Kan.
Dear Sir: Enclosed find certified check for $265.71 fa-cover amount due you in the Cole matter.
I wish you would please arrange for me to get the abstract to the property; if the Commercial National Bank has it, please execute an order that I may get it.
Enclosed you will also find power of attorney executed by Miss Cole to me which will be your authority for delivering these notes to me; she has also executed to me, an assignment in words as follows:
To W. E. Oasleton: I hereby assign all my right, title- and interest in and to certain promissory notes which are now-held by Geo. R. Allen of Kansas City, Kan., for $3,350.00,. signed by Justice Anderson and payable to Ellen Cole. Dated’ this 30th day of January, 1911.- Signed, Ellen Cole.
Trusting all matters are satisfactory and to receive notes,, etc., by return mail, I remain
Very truly yours,
W. E. CASLETON.
Defendant testified that a few days after this note was received he presented it to prosecutrix and she indorsed and transferred it to him by signing her name on the back thereof, and that the land by which the note was secured being situated in Kansas, where an assignment of the deed of trust was necessary to make the transfer of the note effectual, prosecutrix duly signed and acknowledged a transfer of the deed of trust.
Prosecutrix testifies that she did not purchase any stock of defendant; that she did not sell or trade the $3350 note to him; and that she did not indorse her name on the note, or sign or acknowledge the transfer of the deed of trust given to secure the note.
There was evidence tending to corroborate both the prosecutrix and defendant at all points where their evidence conflicts. The conclusions we have reached render it unnecessary to set out all of such evidence in this opinion.
The following facts are undisputed:
That the note for $3350 was not indorsed by the prosecutrix when defendant received it into his possession; that on February 27,1911, defendant borrowed $500 from a bank in Kansas City, giving the $3350 note originally owned by prosecutrix as security for said loan; that a few months later he borrowed $1500 from another bank in the same city, again using the same collateral as security; and that in May, 1912, the defendant sold the $3350 note outright for $2950, and that he appropriated the proceeds of the sale to his own use. Defendant, further testifying in his own behalf, stated that in hypothecating the $3350 note and in selling it he was not representing the prosecutrix as agent,
Such further facts as are necessary to an understanding of the issues to be determined by us will be noted in our opinion.
Among the grounds urged for reversal are: (1) insertion of the word attorney in the information, when said word does not appear in section 4550, Revised Statutes 1909, upon which this prosecution is based; (2) the admission of improper evidence; and (3) that the verdict is contrary to the evidence.
OPINION.
I. As we have concluded that the'judgment must be reversed for reasons expressed in another paragraph of this opinion, we will consider only such assignments of error as may point the way to a correct retrial of the cause.
So that, according to the evidence of both parties, defendant never was employed by prosecutrix to either collect or sell the note. It is somewhat strange that the learned prosecuting attorney should charge the defendant with receiving money as the agent of the prosecutrix, when she swears so vehemently that she did not grant him authority to even receive the note into his possession. However, we can only deal with the case as it comes to us, not as it might have been if defendant had been charged with a different offense.
If we set aside and disregard the evidence of both prosecutrix and defendant, it appears that the $3350 note came into defendant’s possession by the mere inadvertence of prosecutrix in giving a general order to Allen, her former attorney, to turn over to defendant all her papers, when she did not at that time understand that Allen was in possession of her $3350 note.
The order to Allen only authorized defendant to. receive and receipt for the note, nothing being said about selling or collecting it, or granting a pledge upon it; so the most that can be said of defendant’s possession under that order is that it constituted him a mere bailee, and as such bailee he could not sell or convey title to same. [Hendricks v. Evans, 46 Mo. App. 313; Sowden v. Kessler, 76 Mo. App. 581.]
Being a mere naked bailee of the note he could' not convert it so as to be guilty of embezzlement as. denounced by section 4550, Revised Statutes 1909, under the rule announced by this court in the case of State v. Meyers, 68 Mo. 266. That case is a construc
The Constitution is not complied with by simply charging a defendant with acts similar to or as heinous as those upon which his conviction is sought. The State, at its peril, must find out what particular criminal law the defendant has violated and prosecute him accordingly. I believe that technicalities should be disregarded, but a constitutional mandate prescribing that a defendant shall be notified by the indictment of the acts for which the State seeks to take away his liberty is not a technicality. It is a matter of substance which cannot be brushed aside or disregarded.
Kansas City, Kan. 3-22-1910.
$100.00
Ninety days after date I promise to pay to the order of Geo. R. Allen, one hundred dollars interest at eight per cent per annum from date. 1 authorize note and mtg. of J. C. Anderson to he held as collateral security for this note. Value received. ELLEN COLE.
But if it be conceded that the payment of the $265.71 by defendant to Allen operated to transfer to defendant the lien of a pledge held by Allen upon the $3350 note, there is still no evidence to show that Allen even possessed the power to sell the note, which had not been indorsed by the prosecutrix. Possessing no power to sell, Allen could not convey any such power to defendant, even if he had attempted to do so, which he did not.
Regarding the right to sell pledged property, the rule is announced in 31 Cyc. 839, as follows:
“In the absence of special authority or agreement permitting him to do so, a pledgee has no right to sell commercial paper held as pledge, either at public or private sale, and an unauthorized sale by him constitutes a conversion of the instrument. The power to sell, may, however, be given the pledgee by express agreement, although even in such case notice of the time and place of sale must be given the pledgor.”
The same rule has been announced by this court in the case of Richardson v. Ashby, 132 Mo. 238.
There being no substantial evidence to support the verdict, the trial court should have sustained defendant’s motion for new trial, and for its failure so to do we reverse the judgment. But as the State may be able to produce other or different evidence upon a