207 Mo. 557 | Mo. | 1907
— Defendant was tried and convicted in the circuit court of St. 'Charles county, and was by said court sentenced to serve two years in the penitentiary on an information in this language:
‘ ‘ Theodore C. Bruere, Prosecuting Attorney within and for the county of St. Charles, in the State of Missouri, upon his oath, informs the court that Anton F. Mispagel, late of the county of St. Charles aforesaid, on the 28th day of December, 1903, at the county of St. Charles aforesaid, and State aforesaid, being then and there an officer and agent, to-wit, the cashier of and for a certain incorporated company, to-wit, the St. Charles Savings Bank, and the said Anton F. Mispagel being then and there not a person under the age of sixteen years, did then and there by virtue of his said employment as such officer and agent as aforesaid of the said incorporated company, have; receive and take into his possession and under his care certain money to a large amount, to-wit, to the amount of four thousand dollars, lawful money of the United States and of the value of four thousand dollars, of the property and moneys belonging to the said incorporated company, and the said Anton F. Mispagel did afterwards, the said money then and there feloniously embezzle and fraudulently and feloniously convert the same to his own use, with*564 out the assent of his employer, the said incorporated company, the owner of the said money; and so the said Anton P. Mispagel did then and there, in manner and form aforesaid, the said money, of the property of the said incorporated company, feloniously steal, take and carry away and converted 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. Theodore C. Bruere.”
“And Theodore O. Bruere, Prosecuting Attorney, within and for the county of St. Charles, in the State of Missouri, upon his oath, informs the court that Anton P. Mispagel, late of the county of St. Charles aforesaid, and State aforesaid, on the 28th day of December, 1903, at the county of St. Charles aforesaid, being then and there an officer, to-wit, the cashier of and for a certain incorporated company, to-wit, the St. Charles Savings Bank, and the said Anton-F. Mispagel being then and there not a person under the age of sixteen years, certain money to the amount and value of four thousand dollars, the same being then and there lawful money of the United States, but the description of which said money is to the Prosecuting Attorney unknown, and which said money was then and there the money and personal property of thei said St. Charles Savings Bank, a corporation, as aforesaid, did unlawfully, fraudulently and feloniously embezzle and convert to his own use, without the assent of the said incorporated company, his employer, which said money had then and there come into the possession and under the care of him, the said Anton P. Mispagel, by virtue of his said employment as such officer, as aforesaid, of said incorporated company, contrary to the form of the statute in such case made and provided and against the peace and disuity of the State. Theodore C. Bruere,
‘‘ Prosecuting Attorney. ’ ’
“Comes now the defendant, by his attorneys, and moves the court to quash the information filed herein, because—
“1. The facts alleged therein constitute no offense.
“2. The allegations are duplicitous in alleging in the first count that the defendant was both an officer and an agent of the incorporated company, and in the second count that he was simply an officer of said incorporated company.
“3. Said information fails to identify the incorporated company by an allegation of the State or country by virtue of which it was incorporated, or by alleging the place of business of said incorporated company.
“4. Because at the time of filing the information and long time prior thereto and at the time of the alleged embezzlement, Theo. C. Bruere, the prosecuting attorney, was an officer, to-wit, a member of the board of directors of the St. Charles Savings Bank, and interested in the funds and properties thereof.”
On this motion it was admitted that the prosecuting attorney filing the information was a director and stockholder in the St. Charles Savings Bank during the
• Thereupon, the defendant filed a motion to require the State to elect upon what transaction it would stand, in which motion is set out all the facts above stated as to the number of informations, the amount of the total alleged embezzlements, the amount of the claim or demand of shortage as made by the bank against defendant and his bondsmen, the amount sued for in the three several suits, and also further alleging that the demands aforesaid were in writing and covered a period of fourteen years, including numerous transactions, and items, and that no such sum as $4,000 appeared in said items. On this motion were offered in evidence the in-formations and indictments aforesaid, the itemized demand aforesaid, and the petitions in the three several suits. This motion was overruled, and the action of the court thereon assigned as error in the motion for a new trial.
To prove the alleged embezzlement of $4,000 named in the information, the State introduced drafts as follows: Draft for $500 drawn October 26, 190'3, in favor of Edwards & Sons, a brokerage firm in St. Louis, on the American Exchange Bank; draft for $800 drawn September 9', 1903, in favor of Edwards & Sons, on the American Exchange Bank; draft for $1,000 drawn February 12th, 1903, in favor of Edwards & Sons, on the Mechanics’ National Bank; draft for $200 drawn June 3,1903, in favor of Edwards & Sons, on the Mechanics ’ National Bank; draft for $1,000 drawn November 20,1902, in favor of the Orthwein Investment Company, a brokerage concern doing business in St. Louis, on the American Exchange Bank; draft for $500 drawn July 1,1902, in favor of the Orthwein Investment Company, on the Mechanics’ National Bank.
These were described by the prosecuting attorney in his opening statement to the jury, and it was further
“Comes the defendant at the conclusion of the evidence on behalf of the plaintiff, and demurs to the same as insufficient to sustain the allegations of the information, and moves the court to instruct the jury to acquit, on the ground and for the reasons, as follows:
“1. The allegation is the embezzlement of money and the evidence tends to show the embezzlement, if any, of drafts or commercial paper.
“2. The allegation is embezzlement in the eounty of St. Charles, and the evidence shows that any conversion of drafts or money that did occur, occurred in the city of St. Louis.
“3. The money alleged to have been converted to his own use by the defendant, was in the city of St. Louis and not in the county of St. Charles.
“4. The money alleged to have been converted by defendant was not in his possession at all.
“5. The proof fails to show that defendant had in his possession any money whatsoever, at the times of drawing the drafts or at any other time, or that there was any money in his custody in the bank of which he was cashier or belonging to said bank.
* ‘ 6. The evidence is insufficient to show a primafacie case, and there is a fatal variance between the allegations of the information and the proof offered in support thereof.
“7. The evidence fails to show that such moneys as the St. Charles Savings Bank had in the St. Louis banks were not placed there and to the credit of the St.*568 Charles Bank, by the defendant in sufficient amount to meet the drafts offered in evidence.
“8. The evidence fails to show the cash on hand in the St. Charles Savings Bank at the time of the drawing of the alleged drafts, or that the money to meet said drafts was not placed in said bank by defendant, and fails to show that the defendant did not give value for said drafts when drawn.
“9. The evidence fails to show the status of the account between the St. Charles Savings Bank and this defendant as its cashier at the times of drawing said drafts, and that at said times he as such cashier did not have a credit to his balance to justify him in drawing said drafts and converting them to his. own use.”
This demurrer was overruled and exceptions saved. The six drafts and other evidence having been introduced, the defendant thereupon moved the court to require the State to elect upon which of the said six transactions it would stand, which motion the court sustained, and the State elected to stand on the draft of November 20', 1902, numbered 97,985, drawn in favor of the Orthwein Investment Company for $1,000, and drawn on the American Exchange Bank of St. Louis, which draft was in the usual form of a bank draft and signed, “A. F. Mispagel, Cashier.” This election necessarily shortens a statement to be made from an exceedingly voluminous record. This draft was in defendant’s handwriting and signed by him. He sent it to the Orthwein Investment Company at St. Louis, which Company collected $1,000 thereon and placed $600 to the credit of defendant on his individual local account in St. Louis, and $400 to the credit of defendant on his individual New York account. Defendant was speculating in stocks and grain through this and other brokerage companies. The evidence shows that while this draft on its face was drawn in favor of the •Orthwein Investment Company, the defendant, on the
By a mass of testimony defendant undertook to explain away tbe alleged shortage to the bank. He also undertook to explain away the single transaction finally involved in this case by reason of the election by tbe State. He claimed to have placed money in the vault of the bank sufficient to cover the transaction, although his personal account with the bank, as shown by the books, did not show it. Several errors as to the giving and refusal of instructions are urged; but with the views we entertain of the law of the case it is not essential that such instructions should be here reproduced. The trial court’s attention was directed to them in the motion for new trial and they are fully preserved in the record.
This is a sufficient statement to indicate what this case is and the nature and character of the testimony upon which it was submitted to the jury. At the clo_se of the evidence the court instructed the jury in accord
OPINION.
The record before us presents a number of very important legal propositions. Some of them are exceedingly close and are entitled to be classed among the many complicated legal propositions with which courts are frequently confronted. We take it that it is not out of place to say, at the very inception of the consideration of this cause, that counsel representing the State, as well as those representing the appellant, have materially aided us in our efforts in- seeking a correct solution of the questions presented to our consideration by a clear and able presentation of them in their respective briefs.
I.
It is contended by learned counsel for appellant that the evidence fails to establish the material allegations in the information. In other words, it is insisted that the charge- in the information of embezzlement of money is not sustained by the proof, which shows that he converted to his own use in St. Charles county a draft. Upon this proposition we take it that the rule is well settled that in an information for embezzlement, like an information for larceny, the property embezzled
After a careful consideration of the adjudicated cases in which this question was in judgment before the appellate courts, as well as the text-writers treating of this subject, we are lead to the conclusion that a charge of embezzlement or larceny of money is not sustained by proof of the embezzlement or larceny of a draft or check. Mr. Bishop, in his work on Statutory Crimes (3 Ed.), sec. 346, states the rules of law applicable to this subject in the following language: “The word ‘money’ means, in these statutes, only what is legal tender. It was even adjudged in Texas to extend simply to metallic coin, and not to include our national greenbacks. Therefore, it does not comprehend bank-bills, though they pass current, or United States treasury warrants, or county claims, or orders of a railroad company on its treasurer, or mere promissory notes, or bills of exchange, or bank checks, or ordinarily anything which is a mere representation of money.”
In Carr v. State, 104 Ala. l. c. 56, which was a case of embezzlement, the court, in discussing the propositions now before us, said: “Each count of the complaint charges the defendant with having received, in one form or another, money from Mrs. Rice. On one aspect of the evidence, he received only a check from
So in the case of Commonwealth v. Wood, 142 Mass. 459. The indictment in that case charged that by false pretenses the prosecuting witness was induced to part with and deliver to the defendant $556.50 in money. It was expressly held that the charge was not sustained by proof of the delivery of a check or draft. The same court, in Commonwealth v. Howe, 132 Mass. l. c. 258, in discussing the proposition now under consideration, said: “The third count charges that the defendant obtained by false pretenses the sum of one thousand dollars from one Bailey; and the proof was, that Bailey paid and delivered to the defendant ‘the
In Goodhue v. People, 94 Ill. l. c. 47, the indictment charged the embezzlement of money, and the proof adduced upon the trial established the embezzlement of county warrants or orders. It was held by the Supreme Court of that State that the charge was not sustained by such proof.
The doctrine announced in the authorities heretofore cited finds full support in numerous other cases. [People v. Leipsic (Cal.), 62 Pac. 311; Block v. State, 44 Texas 620; Hamilton v. State, 60 Ind. 193; Com. v. Merrifield, 45 Mass. 468.]
This precise question has never been passed upon by the Supreme Court of this State. In State v. Dodson, 72 Mo. 283, where the charge was the embezzlement of three-horses, it was held improper to admit evidence showing the embezzlement of the proceeds of such horses. In State v. Crosswhite, 130 Mo. l. c. 366, the charge was the embezzlement of potatoes. It was held that evidence of the embezzlement of the- proceeds and an instruction thereon were improper. In State v. Schilb, 159 Mo. l. c. 142, the charge was embezzling money. It was held that such charge- was not sustained by proof of the embezzlement of a cow and calf. Now, while it must be frankly conceded that these cases are not applicable to the proposition now under discussion and are of little value in the solution of the propositions now being considered, however, they are import
In the case of State v. Wissing, 187 Mo. l. c. 106, it was urged by the appellant that an instruction was erroneous because it assumed that the charge of embezzlement of money was satisfied by the proof of embezzlement of checks. Judge Burgess, who wrote the opinion in that case, did not discuss the proposition for the reason, doubtless, that there was no necessity for such a discussion. He clearly pointed out that the evidence in that case sustained the charge of the embezzlement of money by abundant proof which established beyond question that money in fact had been embezzled; therefore, it was simply held that there was no error in the instruction, because the proof shows that in fact money had been embezzled.
Applying the rules of law as heretofore indicated in the authorities cited, we are of the opinion, even conceding that the draft, as identified in this case, was one which could be made the subject of embezzlement, still the proof of the conversion of such draft does not sustain the charge in the information that the defendant converted to his own use one thousand dollars in money, of the property of the bank of which he was cashier. Tn other words, where an indictment or information charges the embezzlement or stealing of money, it is not sustained by proof of embezzlement or stealing of a check, draft, bond or other property. The proof must be in substantial accord with the charge in the information.
The conclusion reached upon this proposition is in no way in conflict with the doctrine announced in. State v. Meysenburg, 171 Mo. 1. The offense in that case was statutory bribery, and the essence of the offense was
Aside from all this, the draft as designated and identified by the proof in this case did not in fact constitute any part of the assets of the St. Charles Savings Bank. It was entirely unlike drafts, checks and bonds which are frequently deposited in banks and become a part of their assets. Under the facts of this case it was not entitled, in the ordinary sense and understanding in commercial usage, to be classified as a piece of commercial paper constituting a part of the assets of the bank. As applied to this case it was simply the agency and means employed by the defendant to get possession of money which was owing his employer, and was of no more significance than any other instrument in the form of a receipt or in any other form by which the same evil purpose could have been accomplished.
Under the facts in this case it is clear that the St. Charles Savings Bank had no specific money in the American Exchange Bank, but it was simply a creditor of the American Exchange Bank, and had a chose in action as against such bank. In other words, the simple relation of creditor and debtor existed, and if the defendant, instead of using this so-called draft, had used an ordinary receipt and either presented it in person or through his agent, and by this means obtained the thousand dollars, the offense would have been the same. It is clear that the defendant, as cashier of the St. Charles Savings Bank, had authority to collect indebtedness due such bank and when this one thous-
In State v. Bacon, 170 Mo. 161, the defendant was entrusted with a pension check for $36 in Douglas county, which he was authorized to take from that county to Norwood in Wright county and cash and return with the money to Cheuey, the owner of the check, in Douglas county. An information was filed against the defendant in Douglas county charging him with embezzlement of- the check and upon- that charge he was tried and acquitted in the circuit court of Douglas county. He had collected the amount of money due upon the check in Wright county and converted the same to his own use, and an information was filed against him in Wright county charging him with the embezzlement of the money so converted. To the information filed in Wright county the defendant filed a plea of autrefois acquit, in which he alleged that he had been tried and acquitted of the same offense in Douglas county. It was held in that case, Judge Burgess speaking for the court, that the defendant was properly convicted of the crime in Wright county and properly acquitted of the charge in Douglas county. In that case, in view of the embezzlement of the money in Wright county, collected upon the pension check which was entrusted to the,defendant in Douglas county, it would not be a violent indulgence of inference, in view of his
In the case at bar it makes no difference, so far as the commission of the offense of emhezzlement is concerned, that the defendant was not present in person in the city of St. Louis. As cashier he had the authority to collect the chose in action held by the St. Charles Savings Bank against the American Exchange Bank, and- whether the money was collected hy his agent in the city of St. Louis and there applied to the defendant’s personal account, thereby converting the money to defendant’s use under the defendant’s directions, or whether he had gone in person and collected such money in the said city of St. Louis and converted the same to his own use, in the same manner as was done by his agent, by applying it to the satisfaction of his own individual account, the offense would have been the same, and the conversion of the money would have occurred in the city of St. Louis.
In State v. Bailey, 50 Ohio St. l. c. 647, the court, in discussing the proposition now under consideration, said: “That the presence of the offender within the county, where a crime is committed, is not always necessary to give jurisdiction, is a settled principle,” citing, in support of the doctrine, Norris v. State, 25 Ohio St. 217. The Norris case, cited above, was one involving the obtaining of property under false pretenses. The defendant in that case resided in Springfield, Clark county, Ohio. The company with which the defendant did business was resident in Akron, Summit county, the same State. The false pretenses by which the de
Mr. Works, in bis treatise on Courts and' Their Jurisdiction, page 470, thus states tbe proposition: “Nor is it necessary that the party committing tbe offense should, at tbe time of tbe commission of it, be actually within tbe State. Por example, a party in one State may, through innocent agents, commit an offense against tbe laws of another State, and within its borders, and thus render himself amenable to prosecution in tbe latter State.”
II.
Having reached tbe conclusion as heretofore indicated, that tbe actual conversion, of tbe money charged in tbe information as shown by tbe evidence in this case, occurred in the city of St. Louis, and thatvsuch act of conversion was done in said city by and through the defendant’s authorized agent, we are next confronted with tbe exceedingly interesting as well as important proposition in this case as to where the venue of tire commission of tbe offense by the defendant should be laid. Tbe record sharply presents tbe question as to
The learned Attorney-General .representing the State insists that in the case at bar there are two jurisdictions and the State may elect, as it has in this case. It is manifest that the defendant, Mispagel, did not convert any money of the St. Charles Savings Bank which he had in his possession in St. Charles county. Directing our attention to the proposition urged by the State that in this case there was jurisdiction either in the county of St. Charles or in the city of St. Louis, we will say at the very inception of the consideration of that question that the evidence shows the existence of the relation of bank and cashier, and the by-laws, which were introduced in evidence, gave the cashier of this bank, who was the defendant, the right to exercise certain powers and imposed upon him certain duties which are ordinarily performed by cashiers of banks, without specifically mentioning what the powers or duties are. The defendant had to account for the moneys and other property received by him belonging to the bank, and presumably at the place of business of said bank, and it is urged by the State that, having formed
In Works on Courts and Their Jurisdiction, page 471, it is announced that the general rule is that where no statute on the subject prevails, the jurisdiction exists where the crime is consummated or completed. In this State we have no special statute fixing jurisdiction in embezzlement cases. “At common law an indictment can be found in that county only in which the crime has been committed.” [12 Cye. 229.] In the same volume and on the same page of the Cyclopedia above cited, the American rule as applicable to this subject is thus stated: “In the United States most of the State constitutions and declarations of rights expressly provide in substance that all criminal prosecutions shall be brought to trial in the county in which the crime shall have been committed. These provisions are strictly construed in favor of the accused, and with a recognition of the principles of the common law, and the Legislature cannot authorize a trial in any other county. ’ ’
This court has announced in no uncertain or doubtful terms the rule that the Legislature cannot under our statute arbitrarily place the jurisdiction of a crim
The case of State v. Hatch, above cited, furnishes express authority upon the proposition now before us. The charge involved in that case was one of embezzlement and the provisions of section 1698-, Revised Statutes 1879, were invoked in aid of the proposition that the jurisdiction of said cause was in the circuit court of the city of St. Louis. This section provided: “Where there is a matter of doubt, in the opinion of the court, in which of two or more counties the offense was committed, the court of either in which the indictment was found shall have jurisdiction of the offense.” It was held in that case that there was no jurisdiction in the city of St. Louis and section 1698, Revised Statutes 1879, was declared void. It was urged in that case by the distinguished counsel, Attorney-General Boone, representing the State, citing many of the English cases which are embraced in eases- now cited by the State in the case at bar, that the embezzlement was in fact committed in St. Louis, and the jurisdiction was there irrespective of this statute. The opinion in the Hatch case does not fully state the facts, at least it is not very explicit upon the facts; so, making an independent examination, we have examined the original record with a view of ascertaining the facts in judgment in that case. We find them about as follows: Hatch was the general collecting agent for J. E. Hayner & Company of St. Louis, which firm was selling mowers and reapers throughout the State. He resided at Sedalia. By his contract he was to receive a salary
In State v. Fraker, 148 Mo. l. c. 160, this court, in discussing the correct rule as applicable to the question now under consideration, said: “When, as here, a crime consisting of a series of acts, part done in one county and part done in another, it is dispunishable at common law in either, unless enough be done in one county to amount to a completed and punishable criminal act,” citing 1 Bishop’s New C'r. Pine., sections 54, 55 and cases cited, “and this rule holds in the absence of statutory enactment to the contrary.”
Applying the rules as announced in the case last cited we are lead to inquire what element of the offense in the case at bar is wanting in order to constitute
In Michigan there is practically the same constitutional guarantee that we have in this State as to the place of trial of an individual charged with the commission of a criminal offense. In that State the lawmaking power enacted a statute which authorized a prosecution for embezzlement in certain cases in the county where the complainant’s principal place of business was located. A man by the name of Hill was arrested. on complaint of one Taylor on a warrant issued for embezzlement. Following this, Hill instituted his suit against Taylor for false imprisonment, and in the case of Hill v. Taylor, 50 Mich. 549, Judge Campbell, in discussing- the law applicable to the subject now in hand, said: “Hill prosecuted Taylor for false imprisonment in being concerned in an unlawful arrest, and obtained a judgment against him for damages, which is brought up on writ of error. The proceeding under which he claims to have been arrested was on a complaint made before a justice of the peace in Washtenaw, for an alleged embezzlement in Wayne county. This action was based on section 7605 of the Compiled Laws which authorizes embezzlement by various public agents, or by private agents under instructions or
In the case of Swart v. Kimball, cited by Judge Campbell in the foregoing quotation, the opinion was written by Judge Cooley, in which he held a statute possessing some of the features of the one treated of by Judge Campbell to be void as being violative of the Constitution.
Judge Black, in State v. Smiley, 98 Mo. l. c. 607, in discussing this question, thus stated the rule applicable to it. He said: “Now under the Constitution of 1875, the indictment for a felony must be found by a grand jury of the county where the offense was committed. It was so ruled, after mature deliberation, in Ex parte Slater, 72 Mo. 102, and that case has been followed in subsequent cases. [State v. McGraw, 87 Mo. 161, and State v. Briscoe, 80 Mo. 644.] It follows that the clause of section 1536, R. S. 1879, just quoted, is void, because in conflict with the Constitution of 1875, and it matters not that it might have been upheld under the Constitution of 1865. The indictment is worthless, for the Madison Circuit Court had no jurisdiction of the offense.”
We find in volume 7 Ency. Plead. & Prac., p. 412, the general rule, is stated thus: ‘ ‘ The defendant cannot be prosecuted for embezzlement in a county where the crime was not actually or in contemplation of law per
Our attention is directed by the Attorney-Gf-eneral to Bishop’s New Criminal Procedure, vol. 1, sec. 61, in which the author in the text says: “Embezzlement may, in various circumstances, be deemed committed in any one of several counties, at the election of the prosecuting power.” Upon an examination of Mr. Bishop upon that subject it will be noted that in the foot note the authorities were cited, upon which doubtless the learned author based the rule as heretofore announced. We find that the cases noted are English cases and some cases from the State of Texas. The Texas cases are not in point and furnish no authority for the application of the rule in the administration of the laws in this State, for the reason that in Texas there is a statute in reference to embezzlement similar to- our statute respecting the asportation of stolen property, which is that the offense of larceny may be charged in any county where the stolen property may be taken. Our attention is also directed to cases from Iowa, Washington, Texas, Massachusetts, Ohio and Illinois. It is sufficient to say as to the authorities that Iowa, Massachusetts and Washington have statutes more or less like the Texas statute as above referred to. In the Illinois case of Kossakowski v. People, 53 N. E. 115, the conclusion was announced before the question now under consideration was reached, hence there was no decision of that question. The Ohio case, 50 Ohio St. 644, seems to be in point and no statute is discussed.
We have indicated our views upon the propositions disclosed by the record before us. We frankly confess that the question is a very important one and by no means one in which the reason and logic are all on one side; but we have carefully analyzed the authorities
Entertaining the views to which we have herein given expression, it results in the conclusion that the defendant’s demurrer to the testimony should have been sustained. This conclusion having been reached renders unnecessary the discussion of other questions presented to our consideration by learned counsel for appellant.
The judgment in this cause is reversed and the cause remanded to the end that the trial court may dispose of it in accordance with the views herein expressed: