*1 649 negligence? plane ordinary from the removing operation sucb of, fall short and circumstances The facts shown not. We think gross establish in themselves to carelessness insufficient and are regard proper for human life or incompatible with recklessness disregard consequences his act from or a limb, reckless may reasonably inferred. criminal Millin, supra; It follows the Studebaker, reversed, nothing in record to indicate and as there is should position supply pointed the deficiencies the State is hereinabove discharged. out, Tipton, should be is so ordered.
T. J., Ellison, J., сoncur. Cochran, Appellant. (2d) S.
The State v. Forrest 182. Two, Division March 1935. Henry Conrad, S. L. E.Durham, Wright Hale Houts Conrad appellant. *2 Frcmk Assistant Attorney General, Hayes, McKittrick,
Boy respondent. Attorney General, for charged, an indictment WESTHUES, Appellant was County, crime em Court of Jackson Missouri,
the Circuit as convicted, punishment and the he wаs bezzlement. On trial Appellant’s years’ penitentiary. five in the imprisonment sessed was overruled, whereupon sentenced, he was for a new trial motion judgment appealed. from which he has Cochran, .charged appellant, Forrest C. The indictment agent, clerk and of the Womеn’s servant $2500, Missouri, City, Kansas in the amount of received unlawfully he, appellant, converted to his own embezzled and The prin- use. introduced no evidence at the trial. cipal point he seeks a of" upon which reversal agent, clerk and servant prove State failed evi- that, thеrefore, Christian Association Women’s charge indictment. to sustain the was insufficient dence organization. a charitable Christian Association was Armour objects charity were the maintenance of Its children. orphan aged couples Home for and the Gillis Nome gifts. voluntary contributions and derived Its fund which had accumulated an endowment the course time it 1917, the $150,000. year year Prior to the 1917, amounted to by a investing the funds was transacted business of association’s desig- During year the association committee City, Missouri, as its of Kansas nated investing purpose the funds association changes this depository of With a number of minor its securities. arrangement April, 1930, still in at which time the force *3 placed receivership. was in during president Liberty Company Trust of the family years from 1917 1930. He all of the and members of his to fifty-four Liberty Trust per capital cent owned of the stock. year banking
Company general did a until the when business banking Liberty Bank. It carried it sold its business to the National through Liberty Mortgage of which Company its other business on the Liberty Mortgage president. All of the of the the stock Company by Liberty Company. was held the Trust
Beginning year Com- Liberty the at the time the Trust sepa- аssociation, trustee of pany made the and the three by kept accounts rate were the trust of the funds of the gen- namely fund, the Armour Gillis and the the fund banking Liberty fund. Company eral After the Trust ceased to do these in separate business accounts were continued the same manner by dеposited Liberty and the in Bank funds National Liberty. Company. against Trust Checks were these funds drawn Liberty of Company, on blanks Trust honored checks were by Liberty National Bank. whereby agreement, agency Liberty
The terms of of created, were set in a forth letter written appellant on of bеhalf to the Women’s Association. letter Many This in Was introduced evidence. of are details immaterial issues are in the- case. Those material are in stated the letter as follows:
“It understanding is our that it will duty be our to invest all of funds keep said and to the same invested’in such securities as shаll writing approved in be five, majority Committee of or a thereof. keep will “We the endowment funds of the Women’s Christian Association, Orphans of Home the Gillis of and the Armour Endow- Fund, ment and the securities in which same are separate invested separate kept accounts shall for each from others and be
each' tbe from each of said funds be and the income shall of said funds separate in this deposited accounts each account us subject being check the Treasurer of the Associa- to withdrawal tion. upon request proper of- time to will, time,
“Ye the Association the condition of Association, report ficer of standing amount income and the funds the said each books, will make annual upon and an funds our of said of each credit year, of each before first the Association report held, the kind and character securities so a list giving detail value, thereof, actual rate the estimated value face thereof, the year, during the current derived therfrom the income interest, requested the Association. information such other and handling trust will be as charges outlined our for “Our Mr. August Askew and are аs follows: letter ‘‘‘ registering accepting them these securities initial fee for Our will be on our books % 1%.’ “ acting securities, col as custodian fee for Our annual crediting due, ac same to the lecting income investing rendering Association, statements count of the n . will Yis 1%.’ charges herein men- “P. S. Thе attorneys employees all salaried tioned include the services especially provided Company, unless otherwise of said Trust writing.” agreement association turned over to Under this *4 $150,000. Company and funds the amount securities Trust company treated, by the as trust was the officers of Thе agent up to the the trust closed its doors. the time Mortgage Company, above, placed in re- Liberty mentioned was also ceivership company. same as the trust Women’s Chris- the against corporations, these which were tian Association filed claims $200,000. allowed, amounting approximately to trial, testified at without hesita- The officers the association the Company tion, they always upon Liberty the and that looked Trust agent of appellant not as the association. From time to time the reports the to the association of investments trust made rejection approval committee of the for the finance the All payments association. to the association income invest- company. presi- Appellant, ments made were made the trust as all as- dent of this transacted of the business with the frequently company. sociation on behalf of attended He meetings years kept of the and a number of board of directors meetings. July, years the after minutes of the two board banking business, Women’s the ceased to do a president trust com- appellant", wrote of the Association Christian in part reаd follows: letter which a pany, Finance you with at the last some conversation "Pursuant to regular its Association at Meeting, Women’s Christian Board meeting following adopted 2” resolution: July Women’s belonging under control of the to or "The securities Margaret belonging including Christian Aged Gillis Couples Hоme for Block Armour Memorial custody of the Liber- and now or hereafter Orphan’s Home kept in in the vault hereafter a box ty Company, Trust shall recognized responsibility. Safety Deposit Company, of of some furnished Liberty Company shall be "The President of the Trust in- be key a of the vault shall but, sаid box custodian only shall opened that the box the President of the structed Record- presence President, Secretary Treasurer Christian Associa- ing or the of the Women’s or modified resolution shall continue in effect until set aside tion. This by action of the Board Association.” Statе, above,
The evidence introduced summarized not an fact discloses that the State failed to establish essential necessary conviction, agent, namely sustain clerk or the evi- Association, servant of the Women’s Christian but conclusively negatives definitely dence estab- such а fact. lished that no other Embezzlement an A is created offense statute. funda mental universally distinction between larceny, embezzlement and recognized, is that in embezzlement law property is fully unlawfully obtained and taking while in converted, larceny the always must unlawful. J. sec. cases therе [20 necessary The elements to constitute the crime of embezzle cited.] , Corpus ment are stated Juris, in 20 page section as follows: 413 "To make out a case of embezzlement under is it statutes necessary first, thing show that the or appropriated converted protectiоn statute; character as to be within the second, belonged that it principal, master or or someone other accused; than third, possession was in the at the accused the time conversion, so that trespass no was committed tak- it; ing fourth, occupied designated aсcused fiduciary rela- held, tion, and—-that possession came into his *5 himby employment virtue his office-, or fifth, dealing that his property with the constituted a appropriation conversion or same; sixth, that there deprive a fraudulent owner of property.” (Italics ours.) his
654 following: 12, page
And at section we read 421, designed cases reach those were “As embezzlement statutes posses- has lawful in he person which a converts it owner, has by, delivery for, sion to him either virtue of a relation they been which there is held that are limited to cases of trust or confidence.” 160, this 158, 162 W. l. c. Moreaux,
In 254 Mo. S. 398, State v. court said: necessary this
“Under state it was State to show: facts, agent; second, First, that was an that he received money employment; his third, as such course of it and, fourth, corporation; it was the that he converted parte Hedley, own 31 Cal. to his use. [Ex 108.]” (2) ; v. 313 281 S. 722 See, Morro, 98, 720, State Mо. l. also, c. 285 Bunton, State v. 314 Mo. S. W. 97. following argument:
In the State’s brief we find the
legal entity.
corporation
“It
has been
true that
held that a
is a
punished.
It is
assum-
corporation
also true that a
cannot be
Even
ing
agent and
that at
the outset
servant,
technicality
urged by appellant
if
to shield
can serve
question
him
he,
was,
from the crime in
as a
so
where
matter of fact
far as
cor-
concerned,
Women’s Christian Association is
.the
corpus
presi-
then
would
poration,
of no trust
ever be safe.
entity,
any
corporate
dent of
under the shield of a
any
impunity.”
could embezzle
escape
trust and
argument
to that
need
few cases
answer
we
to cite a
guilty
wherein defendants
of similar conduct were
sentenced
penitentiary
and their
affirmed
convictions
this court
properly
Bunton,
indicated.
v.
Morro,
v.
State
[State
may
having
case
guilty
this
have
been
embezzled
guilty
funds of the
he
have been
larceny, depending upon
evidence,
but the record
us con
before
clusively
agent
shows that he
not
charged.
as the indictment
171
v.
Mo.
Brown,
477,
The State next
that appellant
estopped
that he was
prosecution
association
bеcause
he
such, citing
acted as
Heath,
State
“Where a his own criminal acts, placed himself has *6 support will a conviction position the evidence in sucb by agent, theories, embezzlement or ob- such as one two either of duty by pretenses, it should not of false taining just and ascertain at hair-splitting distinctions court to draw fine was formed. The embezzlement what moment the criminal law. The a defect in remedy the common statutes were enacted constructions, to the add difficulties not, should strained courts prosecutions.” 'of the State in such subject were text on the there
Cases other states and writers ease, quoted. However, cited and in that as in cases cited State, that the received the there was defendant evidence agent. embezzled, as no such evidence the case at bar. There is If present such evidence were without hesitation invoke we would as estoppel doctrine of we did the Gould case. maintaining ac- evidence in addition to three discloses that counts, required agree- forth above set and as was under trust ment, appellant Liberty Mort- kept an account on books of the gage Company known as the C. Cochrаn “Forrest Trust Account.” $2500, subject prosecution, was the was trans- of by check, from the Armour ferred, fund the “Forrest Cochran Liberty Mortgage Company. Trustee Account” of the The officers of knowledge any the "Women’sChristian had no of they being deposited account. Neither did know that funds were dealings in the All National Bank. of their were with the year 1917, closing from the to the company. of the trust $2500 There was some item evidence belonged general properly and not to the fund to the Armour fund and, therefore, the a misappropriation. transfer of this fund was not showing Be that as there was an of abundance evidence appellant had, system of concealment the true facts fi- bookkeeping reports, false misled association as to the nancial status the investments. In some instances funds of the pay association were Many personаl obligations appellant. used paid loans had been report to the trust there- no of made to the association. Interest on these loans was thereafter regularly paid, due, by
apparently out that had evi- been collected. The dence of these various transactions purpose admitted for showing intent. was, There therefore, ample showing that evidence appellant guilty had been conduct, criminal but es- no evidence tablishing an agency between the association and no evidence which would justify us in es- applying doctrine tоppel. Agency can by contract, expressed be created either implied. time, v. Brown, The association at no [State supra.] either expressly its dealings gave conduct or with appellant, appellant any authority possession assets, to take its or securities If take such funds he did Bunton, inception. taking wrongful supra.] in its [State guilty If he misappropriated the Morro, embezzling agent. those funds as its *7 fail because What must prosecution we have said that this indicates indictment. charge support evidence failed will, points raised therefore, unnecessary discuss other Cooley motion reversed. for new trial. is
BoTiling', CC., concur. adopt- opinion by Westhues,
PER foregoing C., CURIAM: —The judges opinion court. All the concur. ed Appellant. S. W. McDaniel, v. Frank (Sonny) (2d) 185. Two, 5, 1935. March Division