Thе appellant was charged with and convicted of grand larceny in the City of St. Louis, and his punishment assessed by a jury at imprisonment in the penitentiary for three years. He was acting director of finance of the State Social Security Commission. According to the State’s evidence his duties were to oversee reports pеrtaining to the disbursement of certain funds by the Commission, or as he, himself, testified, he had supervision of its accounts and records, the disbursement of funds, and the auditing of accounts and bills presented. He did not have official or actual custody of its funds, or authority to open up revolving funds. On February 10, 1938, for the announced purpose of creаting a revolving fund in the St. Louis office, he procured the issuance and delivery to him by said Commission of a negotiable voucher check for $1500, payable to the St. Louis City Social Security Commission, W. E. Uthe, Disbursing Officer, and signed, Missouri Relief Commission, Wallace Crossley, Administrator, R. F. Wayland, Disbursing Officer. The check also bore a notation which may have been a part of the signature, Missouri Federal Relief — Geo. I. Haworth, Custodian.
The indictment substantially so described the check, but did not otherwise allege its value. Appellant took the check to St. Louis, forged the endorsement of the payee by a rubber stamp, and further endorsed it in blank for collection, and used it to purcháse a boat for himself. The Social Security Commission, created by Laws Mo. *1233 1937, p. 467, was the state agency administering the .Federal funds on which the voucher check was drawn, though its name does: not appear thereon. It succeeded the Missouri Eelief .Commission named therein, which had no statutory existence by name, but was appointed, by the Governor, it seems, to disburse Federal funds. At any rate the Social Security Commission had superceded or absorbed the Missouri Eelief Commission at the time here involved, and Was discharging the duties formerly performed by the latter.
Appellant’s assignments of error cоnverge on these three propositions : (1) the indictment only charged petit larceny, a misdemeanor, because it failed to allege the value of the check was over $30, whereas the appellant was convicted of grand larceny, a felony; (2) .further, the indictment did not inform appellant- of thе offense with which he was charged, because it alleged the check was issued by the Missouri Eelief Commission, a non-existent body; (3) the evidence failed to make a prima facie case of grand larceny because it appeared from the State’s own evidence that no trespass was committed in obtaining the check, thereby/making the offense embezzlement if anything.
Taking up appellant’s first assignment, that the indictment was wholly insufficient to support a conviction for grand larceny because it failed to allege the value of the check stolen was at least $30, the minimum set by Sec. 4456, E. S. 1939, Mo. Stat. Ann., p. 3061. There are sеveral statutes which make this contention untenable. Section 3945, E. S. 1939, Mo. Stat. Ann., p. 3154, provides that (italics ours) : “in any indictment for . . . stealing . . . any instrument or property, it shall be sufficient to describe such instrument or property by any name or designation by which the same • may be usually known, or by the purport thereof, without setting out any coрy or facsimile thereof, or otherwise describing the same, or the value thereof.”
In State v. Fischer,
“In all other cases, whenever it shall be necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thеreof, without setting out any copy of facsimilie of the whole or any part thereof.”
Also Sec. 4461, R. S. 1939, Mo. Stat. Ann., p. 2875, provides that “if the property stolen consist of any . . . bill of exchange, draft, . . . the money due thereon, or secured thereby, and remaining unsatisfied, which in. any event or contingency, might be collected thereon, . . . shall be deemed
prima fade
evidence of the value of the article so stolen.” It was held in State v. Connell,
The next assignment is that the indictment did not sufficiently advise the appellant of the offense with which lie was charged because it alleged the check was issued by the Missouri Federal Relief Commission, a non-existent body, when in truth it was issued by the State Social Security Commission. Appellant’s contention is not that the description in the indictment of the check and indorsements was different from the face of the check and indorsements as proven in .evidence. On the contrary the objection on this appeal is that while the evidence showed the check on its face was issued by the Missouri Federal Relief Commission, as pleaded, or the Missouri Relief Commission, still the evidence also showed that Commission no longer had any legal existence, and the check was in fact issued in its name by its successor, the Social Security Commission.
There is no contention here that appellant was surprised by that proof. Indeed, he was perfectly familiar with the issuance of the cheek; said it was in fact issued to create a revolving fund for the St. Louis Social Security Commission; and that he merely indorsed it in blank “for collection” to the boat company, not meaning to transfer title but only to put it up to establish his good faith in purchasing accessories for the boat. Neither is it disputed that the State of Missouri was the owner of the check and the bank deposit on which it *1235 was drawn, the same being a special fund derived from Federal sources.. Appel]ant’s real contention is that there was a fatal variance between the indictment and the proof, so that a conviction- in' the instant prosecution would not bar another for the-same offense.
On this assignment appellant cites several cases
*
. But the Kroeger case was overruled by State v. Moore,
¥e have already pointed out that the later Fischer case concedes ’ under Sec. 3947, supra, an indictment might be sufficient if it de-' scribes a cheek by name without further description, if the amount is stated. The Wright case held that an indictment charging burglary ■ of the home and larceny of the property -of a named person could not be amended to charge that the home burglarized and the property stolen were those of a totally different person. But that case goes on to explain the name of the alleged owner was the only description in the indictment identifying the property stolen. In the instant case it was not disputed that the indictment described the check substantially in form as it was issued, in compliance with Secs. 3945 and 3947, and that it gave all the facts necessary to identify the check, † save that1 it alleged the check was issued by .the Missouri Federal Belief Commission, when, in fact, it was only issued in that name by the State Social Security Commission, which had succeeded to and was dis: charging the functions of the former Belief Commission, and ivas *1236 carrying the bank account in the old name. In the Jeffords cаse the information merely charged the property stolen was “merchandise to the value of about $40.” That was clearly too indefinite and is wholly different from the facts before us now.
We think the facts in the instant case brought it within the provisions of Sec. 3951, R. S. 1939, Mo. Stat. Ann., p-. 3158, which provides in substance that whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the indictment and the evidence as to the name or other description whatsoever or (of) any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein described, or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquital of the defendant, unless the court before which the trial shall be had, shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.
It has been said the statute is very broad in its terms, and leaves much to the discretion of the trial court in determining whether the variance is material and prejudicial. [State v. Harl,
The last assignment urged is that the evidence failed to make a prima facie case of grand larceny because it appeared from the State’s own evidence-that no trespass was committed by appellant in obtaining the check, and that he was only guilty of embezzlement if anything. It is conceded and well established that the offense of larceny always involves trespass; a taking against the will of the owner. [State v. Harris,
*1237
Appellant cites and stresses two cases: State v. Casey,
On the other hand many of our cases lay down the distinction that the crime is embezzlement or larceny, depending on whether the defendant
honestly
receives the possession of the goods, chattels or monеy of another upon any trust, express or implied, and, after receiving them, fraudulently converts them to his own use. If these facts appear the crime is embezzlement, but if possession of the property is obtained by fraud, with an intent on the part of the defendant at the time he receives it, to convert the samе to his own use, and the person parting therewith intends only to surrender his possession, but not his title, the offense is larceny. [State v. Buck,
There is also ample evidence that he obtained the check here involved by fraud with an intent to appropriate the same and the funds called for therein to his own use. He had been negotiating with the Boat Company for some time about the purchase of a boat, which, with accessories, would cost substantially $1500, the amount of the cheek. When he sought to obtain thе check he went to a bookkeeper of the Social Security Commission and made a written requisition therefor for the announced purpose of establishing a revolving' fund in the office of the St. Louis Social Security Commission. Tbe bookkeeping offered to issue a transfer Voucher-check, which would have been non-negotiable. But defendant rejected it and went to another employee from whom he obtained the check here involved, which was negotiable. This, together with his subsequent conduct, clearly warrants an inference that he intended before and when he obtained the *1238 check, to appropriate the proceeds to Ins own ase. And as stated, lie did not merely convert hinds or negotiable instruments already in his lawful possession, but he went to other employees and procured their issuance with the fraudulent jmrpose aforesaid. We think there was substantial evidence of grand larceny.
Finding no error in the record, the judgment is affirmed.
Notes
State v. Kroeger,
The indictmеnt was as follows: “The grand jurors of the State of Missouri, within and for the body of the City of "St. Louis,' now here in court, duly impaneled, sworn and charged, upon their oath-present, that A. Harvey Harrison on or about the 12th day of February one thousand nine hundred and thirty-eight, at the city of St. Louis aforesaid, a certain check, dated February 10, 1938, for the sum of $1500, drawn on the Central Missouri Trust Company, Jefferson City, Missouri, payable to the order of thSt. Louis City Social Security Commission, W. E.. Uthe, Disbursing. Officer, St. Lo'uis, Missouri-, issued by the Missouri Federal Relief Commission, George I. Haworth, Custodian, R. F. Wayland, Disbursing Officer, and bearing on the back of said check the endorsement of the St. Louis City Social Security Commission, 2221 Locust Street, St. Louis, Missouri, W. E. Uthe, Disbursing Officer St. Louis Division, the personal property of the State of Missouri, and then and there unlawfully and feloniously did steal, take and carry away from the owner thereof, with the felonious intent then and there to permanently deprive the owner of the use thereof, and to convert the same to his own use; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”