At thе April term, 1895, of the criminal court of Jackson county, Missouri, defendant was convicted of the crime of embezzlement and his
There were six counts in the indictment, but after the evidence was all in the court withdrew thе first five, and the conviction was under the sixth count, which, leaving off the formal parts, is as follows:
“And. the grand jurors aforesaid, on their oath aforesaid, do further prеsent, that on the seventeenth day of December, A. D. 1894, at said Jackson county, state aforesaid, the said Robert H. Crosswhite was. a commission merchant and аgent, and as such a member of the firm of Crosswhite and Company, composed of him the said Robert H. Crosswhite and one J. O. R. Campbell, and he, the said Robert H. Crosswhite, аs such commission merchant and agent, and as such member of said firm, then and there became the consignee and bailee of one David H. Biethan, in possession of seven car loads of potatoes of the value of five hundred and twenty-five dollars, and the property of said David H. Biethan, and which potatоes then and there came into the possession and care of said Robert H. Crosswhite as such commission merchant, and as the said consignee and bailеe of said David H. Biethan, and he, the said Robert H. Crosswhite then and there, the said seven car loads of potatoes unlawfully and feloniously did embezzle and cоnvert to his own use, and so the jurors aforesaid, on their oath aforesaid, do say that the said Robert H. Crosswhite, the said seven car loads of potatoеs in manner and form aforesaid, feloniously did steal, take, and carry away contrary to the form of the statutes in such cases made and provided and agаinst the peace and dignity of the state.”
The salient facts, as disclosed by the record, are briefly as follows: During the latter part of the year 1894, defendant аnd J. O. R. Campbell were copart
Defendant’s first contention is that the court committed error, in admitting, by the state, on the first five counts in the indictment, in one of which, the fifth, he was charged with embezzling the money arising from the sale of the potatoes, evidence tending to show that he was guilty of that offense, then afterward withdrawing said counts, and in not excluding such evidence from the consideration of the jury.
No objеction seems to have been made to the introduction of this evidence, and if defendant was of the opinion that it was inadmissible under the sixth count, he should have made timely objections thereto, stating the specific grounds of his objection, andas this was not done all objection thereto must be deemed to have been waived.
Had objection been properly made, such evidence would have been clearly inadmissible under the sixth count. State v. Dodson,
State v. Adams,
Defendant offered evidence tending to show that he had turned the proceeds arising from the sale of the potatoes over to his partner, which, uрon objection by the state, was excluded, and in this it is insisted that error was committed.
This contention is untenable. He was not in the employ of Campbell and was under nо obligations, legal or otherwise, to turn the proceeds over to him, but it was his duty to turn over to Biethan whatever money he received belonging to him, and he should not be permitted to escape the consequences of a criminal prosecution by showing that he turned the money over to another person who was no more entitled to retain it than he was. His first duty was to comply with his obligations to his bailor.
Another contention is that the defendant was improperly convicted as bailee because under the decision of this court in State v. Grisham,
It is worthy of observation that, in that case, no contractual relation existed between the parties, while in the case in hand, there was an express contract by which the firm of Crosswhite & Co. were to sell the potatoes for Biethan at five per cent commission.
The statute as it then stood, rеad: “If any carrier, or other bailee shall embezzle,” etc. In the revision of 1889 the words “or other person” were added after the words 11 if any carrier or bailee,” so that it now reads, “If any carrier, bailee or other person shall embezzle,” etc. Thе amendment of the statute was evidently for the purpose of meeting the ruling in the Grisham case, so as to make it apply to all cases of bailment.
The indictment in State v. Adams, supra, was drawn under section 3549,Revised Statutes, 1889, and what was said in that case with respect to the indictment under consideration does not militate against what has been said in this.
That defendant was bailee of the potatoes there can be no question (Middleton v. Stone, 111 Pa. St. 589; Furlow v. Gillian,
The indictment contains all necessary allegations, and the objection taken to it on the ground that it does not allege by whom the potatoes were delivered to defendant is without merit. It does allege that thе potatoes were the property of Biethan, and that they came into the possession and care of defendant as commission merchant, and as the consignee and bailee of said Biethan. It is in the language of the statute, and unquestionably good.