267 Mo. 437 | Mo. | 1916
In November, 1913, appellant was charged in an information filed in the circuit court of Livingston County with embezzlement, under section 4550, Revised Statutes 1909. Upon a trial in the circuit court of Daviess County, to which the case had been transferred by change of venue, appellant was convicted and sentenced to four years’ imprisonment in the penitentiary. The original information was in one count. Appellant moved to quash same on the general ground that it did not state facts sufficient to constitute a cause of action. This motion was by the court overruled. After the case had been transferred to the circuit court of Daviess County, in June, 1914, the prosecuting attorney of Livingston County filed in the circuit court of Daviess County an amended information charging the appellant with the same offense as in the original, but in two counts, one for the embezzlement of money and the other for the embezzlement of a check. On the day said amended information was filed, the appellant announcing ready for trial, a jury was sworn and impaneled and the trial proceeded, but before a verdict was rendered the court, on its own motion, stopped the proceedings and quashed the amended information and ordered that the appellant be held for trial on the original information. Thereafter, on December 10, 1914, appellant filed a plea in bar on the-ground that having been put upon his trial oh the amended information and a jury having been impaneled and sworn to try him, he had been put in jeopardy and hence should not again be required to answer for the same offense. This plea was overruled. Appellant then filed an application for a continuance on the
In tbe spring of 1913 Charles E. Greger owned a farm in Livingston County burdened with two deeds of trust, one for $3000 and tbe other for $1600. Both were held by Frank B. Caesar. Tbe notes secured by these deeds of trust becoming due, tbe owner desired their payment. Tbe appellant at tbe time was in' tbe real estate and loan business in Chillicothe, and Greger approached bim for tbe purpose of securing a loan to enable bim to take up these notes and release bis farm from tbe deeds of trust. Tbe first conversation in regard thereto between appellant and Greger was in tbe latter part of March, 1913, and as a result of same Greger filled out, at appellant’s direction, an application to Bartlett Bros, of St. Joseph for a loan of $3600. After some correspondence between Bartlett Bros, and tbe appellant, tbe former agreed to make tbe .loan to tbe amount of $3400 oñ tbe Greger land, and on April 14, 1913, a note and deed of trust were executed by Greger to Bartlett Bros, for that amount and same were delivered to appellant to be forwarded to Bartlett .Bros.; at tbe same time another note and deed of trust were executed for tbe sum of $1400, which sum of money was to be obtained from a source other than Bartlett Bros. When it bad been ascertained that tbe money could be obtained from Bartlett Bros., Greger
On the completion of the abstract of title of the Greger land and its examination and approval by Bartlett Bros., on June 14, 1913, they forwarded to appellant their check, payable to him, for $3298, being the proceeds of the $3400' which they had agreed to loan Greger, less the commission. A few days prior to the forwarding of this check appellant had written Bartlett Bros, that he had completed the arrangements for the second loan, but it is further shown by the evidence that this had not been done, and that the second deed of trust was never recorded, nor was the note representing it ever negotiated. The check for $3298 sent by Bartlett Bros, to appellant was indorsed by a stenographer in his office and placed to his credit in the Peoples Savings Bank of Chillicothe. None of this money was ever paid to Greger, but all of it was cheeked out, either by the appellant or persons in bis office authorized to check on his account, and in November preceding the trial the entire amount had been thus withdrawn from the bank, leaving only a balance of ninety-four cents. Nor was any of the proceeds of this check ever paid to Caesar, the owner of the two deeds of trust. Appellant never at any time disclosed to Greger that he had received the $3298 or any other amount of money from Bartlett Bros, by reason of the execution of, the note for $3400 and deed of trust by Greger to said Bartlett Bros, to secure same. Upon the consummation of this loan by the delivery made by appellant to Bartlett Bros, of the note and deed of
The charging part of the original information is as follows:
“That Charles E. McWilliams on or about the 14th day of June, A. D. 1913, at said county of Livingston and State of Missouri, being then and there the agent of a certain private person, to-wit — of one Charles E. Greger, and the said Charles E. McWilliams, being then and there, not a person under the age of sixteen years, did then and there by virtue of his said employment as agent of the said Charles E. Greger, have, receive and take into his possession and under his care certain money to a large amount, to-wit, to the amount of thirty-four hundred dollars, lawful money of the United States and of the value of thirty-four hundred dollars, of the property and moneys belonging to the said Charles E. Greger,’ and the said Charles E. McWilliams the same money then and there feloniously did embezzle and fraudulently convert to his own use, without the assent of his employer, the said Charles E. Greger, the owner of said money; and the said Charles E. McWilliams, the said money, in manner and form áforesaid, feloniously did steal, take and carry away; against the peace and dignity of the State.”
In addition to the general objection urged by appellant to the information, it is contended that it does not allege a criminal intent.
The statute upon which this charge is based creates two offenses: one consisting of the doing of the act itself, and the other of doing certain things in regard to the subject-matter with the intent’to do the prohibited act. The information here is based upon the first offense denounced by the statute and charges the commission of the act iiself and not the doing of something else with the intent to commit the act.
Embezzlement is the fraudulent conversion of another’s property by one to whom it.has been intrusted or into whose hands it has lawfully come; and when it has been embezzled or converted, within the meaning of the statute, it is not an improper inference that the act was intended by the perpetrator of same. While it is true that no one can be convicted of a felony in the absence of a criminal intent, such an intent in a case of embezzlement may be inferred from a felonious or fraudulent conversion and need not be alleged in the information or indictment. This ruling as to the suffi
The fallacy of this contention becomes apparent upon an analysis of same. It bases the plea of jeopardy upon an assumption and not upon a fact. A defendant cannot thus be put in peril within the meaning of the Constitution. [Art. 2, sec. 23, Constitution.] It will not suffice to assume that because appellant could not be injured by the invalid proceeding that he ■must perforce have cause of complaint because there was pending against him in the same case a valid charge which he was not then required to answer. If the appellant was only required at the time the amended information was preferred against him to answer the charge therein- — -and no further demand could the State then make — under what rule of reason or law can it be said that he was answerable under the original information? It is true that it formed the foundation for the prosecution and gave the circuit court of Daviess County derivative jurisdiction of the case upon the perfecting of the change of venue, but this did not give it power while simply lying in the files
If the fallacy of appellant’s contention be not sufficiently shown by the foregoing concrete reasons, let us see what light is thrown on the question by the authorities.
A rule well established here and elsewhere requires that before a plea of former jeopardy can be sustained these facts must be made to appear; that a valid charge either by indictment or information has theretofore been preferred against the accused in a court of competent jurisdiction charging him with the same offense of which he is on trial, and that in the former proceeding a legal jury was impaneled and sworn. [State v. Buente, 256 Mo. l. c. 239, and cases; State v. Keating, 223 Mo. l. c. 94; 12 Cyc. 261.] There are exceptions to this rule well stated in the Buente case, supra, p. 241, but not necessary to be considered here. Appellant was at no time before his arraignment and the trial which resulted in his conviction, required to answer, on a trial, a valid charge preferred against him. This is one of the essentials necessary under the rule stated. The amended information, as he admits, lacked the requisite of validity, for the reasons set forth in State v. Bartlett, supra. He was not arraigned upon or required to answer the original information when the proceeding of which he complains was pending against him, nor was a jury impaneled and sworn to try him on this charge. To hold, therefore, that it operated to his injury in the absence of these essentials would be in violation of precedent and contrary to reason.
No provision of our Bill of Rights was violated in the trial of appellant, nor was he entitled to be heard on the plea that the proceeding against him contravened the Fifth Amendment to the national Constitu
No intendments are to be taken in favor of applications of tbis character (State v. Good, 132 Mo. l. c. 129); from its express allegations the conclusion is reasonable that appellant knew not only what the testimony of this witness would be 'but her whereabouts in ample time between the date of the filing of the information and the trial to have enabled him to take her deposition.
If the allegation as to appellant’s then recent knowledge of the witness’s testimony bore the impress of truth, which it does not, then the trial court would have been justified in granting the application, in view of the statement that he had sent her money to defray her traveling expenses to the place of trial and that she had agreed to attend; but under the facts as we view them a proper exercise of diligence required him to take her deposition. This being true, the overruling of the application, which was addressed to the sound discretion of the trial court, was not unwisely or oppressively exercised and we refuse to interfere with same. [State v. Cain, 247 Mo. l. c. 705; State v. Crane, 202 Mo. l. c. 74; State v. Clark, 170 Mo. 207.]
If it be conceded that appellant was the agent of the loan company at the beginning of the transaction this doés not militate against the conclusion, supported by the facts stated, that he was the agent of the borrower to negotiate the. loan and apply the proceeds thereof as had been directed; but the credibility of appellant ’s testimony as to his agency for the loan company, at any time, is shaken by the testimony of Peterson, a representative of the company, that up to the time the appellant made the application for Greger he was a stranger to the company and that even the formal blank used in this application was not procured by the appellant from the company’s office. Subsequently this witness stated that appellant during the year 1913 negotiated four or five loans through the company, but this does not tend to show appellant’s agency in the matter at bar or in the cases of which the witness testified.
Circumstances naturally arising out of a transaction are sometimes as strong in probative force as sworn testimony. This case affords an illustration oí this fact. Appellant was not compensated for his services in securin'g this loan by the company, as he would naturally have been had he been its agent, but by Greger. When the note and deed of trust had been executed and delivered to the loan company it forwarded to appellant for Greger, not $3400, but a check for $3298, or $102 less than the face of the note, which latter sum it deducted and retained for its services in making the loan. While it is stated in one of the letters from the company to appellant that "it will, when the loan has been completed, pay him his part of the commission,” so far as the evidence discloses none-of
The cases cited in respondent’s brief under this head, by reason of the similarity of their facts to those in the instant case, sustain the conclusion we have reached in regard to appellant’s agency.
These facts sufficiently show a felonious intent on the part of the appellant, and his relation to Greger as an agent having been established, his act is clearly within the purview of that general rule that if one who has the possession of the property of another, instead of delivering it to the owner as his duty requires, neglects or refuses to account for it or otherwise diverts it ,so as to exercise dominion over it to the' exclusion of the owner and to make it his own, he
Further objection is made that tbe court erred in permitting tbe State to show that tbe check received by appellant from tbe loan company bad been indorsed and deposited to bis credit in a bank and bad later been checked out by bim. Tbe check was made payable to appellant, and necessarily under tbe authority given him by Greger be could not commit the crime of embezzlement until after it bad been indorsed and converted into money. If in tbe latter form be used it as directed, be was guiltless; on tbe other band if be used tbe money for purposes other than to pay it to Greger or to discharge tbe prior liens, he was guilty as charged. It is.manifest, therefore, that tbe court’s ruling in this respect was not erroneous. Moreover, appellant admitted on tbe witness stand that tbe check bad been received and deposited and tbe money drawn out of tbe bank by himself or others authorized to do so and that be bad used tbe same for personal purposes. Therefore, wbetber tbe action of tbe trial court in permitting a witness to state tbe condition of tbe bank was erroneous is immaterial, as tbe evidence given by such witness was in accord with that given by tbe appellant himself. Harmless error will not work a reversal.
There was ample evidence to sustain the verdict. Appellant was awarded a fair trial and has no just cause of complaint. We find no error authorizing a reversal and the judgment of the trial court is affirmed.