268 Mo. 431 | Mo. | 1916
— After due preliminary proceedings the prosecuting attorney of Shannon County filed in the circuit court of that county his duly verified information, consisting of fifteen counts, and charging the defendant in certain counts thereof with embezzlement from the Bank of Birchtree, and in others with falsifying the records of said hank with intent to defraud. The counts as to the falsification of the records were dismissed, and defendant was tried on those charging embezzlement. He was convicted on the third count, which charged the embezzlement of $600 on the 19th day of June, 1911, and his punishment was fixed at imprisonment in the penitentiary for a term of two years.
Because of the numerous counts the evidence extends over rather broad fields, and on the part of the State discloses that during the years 1911-12 defendant was cashier of the Birchtree State Bank, which was organized sometime in the year 1905. On August 28, 1913, the State Bank Examiner, in the course of his duties, made an examination of the hank, which disclosed irregularities and discrepancies and a financial impairment of $14,000. This shortage, or at least a portion thereof, had been covered up and concealed by means of false entries, which defendant admitted he had made upon the hooks of the bank. This was done by failing to credit to the account of the depositors the correct amount which he deposited, the same being transferred and credited upon the hooks to the account of the defendant. In some instances no record was made of the deposit, hut the money was directly appropriated by the defendant to his own use. In numerous cases the hooks disclosed that certain patrons and depositors of the hank were overdrawn in their accounts, when in truth and fact the bank was indebted to them, and, instead of the hooks disclosing a shortage in their account, they should have shown a
Upon being confronted with the disclosures which the official examination made, the defendant at first insisted that the bank examiner was mistaken, and that the discrepancies and differences appearing between the entries on the books and the true facts could be consistently explained. Later, however, he admitted substantially that the hooks were incorrect and that he had transferred to his own account and had used the money of the various persons who had made deposits with the bank, and further that if allowed time he would pay to the hank the amount of his shortage.
On the part of the defendant the evidence tended to show that he bore a good reputation in the community in which he then lived and had lived at former times. He himself testified and denied that he had ever converted to his own use any of the money belonging to the bank.
Such other facts as are deemed important will he referred to in the opinion.
“And while acting as such cashier did then and there unlawfully convert to his own use any of such money belonging to such bank in any sum to .the amount of thirty dollars or more without the assent of such bank, then you shall find defendant guilty,” etc.
It will be noticed that the instruction does not use the term “embezzle,” nor does it require that the act of conversion be felonious or fraudulent, or be done with a felonious or otherwise fraudulent intent. Since the statute upon which the indictment is predicated does not couple with the prohibited act any specific intent, but makes the commission of the act itself the offense (State v. Lentz, 184 Mo. 223; State v. Larew, 191 Mo. 192), it'was unnecessary that the instruction purporting to cover the offense specifically mention the element of intent, provided its terms were otherwise sufficient to include, in a general way, all the elements essential to a commission of the act forbidden. We do not mean by this that a felonious or otherwise fraudulent intent is not a necessary element of the offense, but that in the general instruction it need not be specifically mentioned, provided the instruction properly covers the prohibited act itself, but to do this, that is, to cover the offense of criminal conversion such terms must be used as will include the element of criminal intent, and forbid a conviction in its absence.
The instruction under consideration merely requires the jury to find that the defendant unlawfully converted the property without the . assent of the
There can be conversions under such circumstances as to not constitute a crime, and the term “unlawful,” as used in the instruction, does ■ %ot add to its meaning. In fact, most acts of conversion (equitable conversion excepted) are unlawful, because in violation of civil rights of others, although many of them are committed under an honest belief of right, and with no criminal intent. Such are not criminal, and vet this instruction! makes no distinction.
We are enjoined by section 8057, Revised Statutes 1909, to give to words and phrases their plain or ordinary and usual sense, and with technical phrases having a peculiar and appropriate meaning in law to give
As’ heretofore stated, this instruction does not use the terms “embezzle” or “fraudulently convert,” but merely the words “unlawfully convert.” Had it" used the word “embezzle” in connection with the word “convert,” it is our opinion that it would have been sufficient, particularly had such words been defined in other appropriate instructions. [State v. Burgess, ante, p. 407.] This subject has received the attention of this court on former occasions, and in State v. Cunningham, 154 Mo. l. c. 178-9, it was said:
“A much more serious question is with respect to the failure of the instruction to tell the jury that in order to convict the defendant they must believe from the evidence that he converted the money to his own use without the assent of McLemoré with a felonious or fraudulent intent to deprive him thereof. The State, however, contends that the only intent required by the statute is that the defendant should have intended to convert the money to his own use without the assent of his principal, and that if he unlawfully did so he is guilty under the statute. There was no such crimp as embezzlement at common law; it is purely a statutory offense, and as to such offense, it is said, ‘ There must be an evil intent, though the statute is silent on the subject.’ [Bishop’s Criminal Law (6 Ed.), sec. 345.] So in 10 Am. & Eng. Ency. Law (2 Ed.), 996, it is said: ‘To constitute embezzlement, it is necessary that there shall be a criminal intent. Most of the statutes, by the use of various terms, expressly require this. Even when they do not, the necessity for such an intent is to be implied. There must be, as in larceny, a fraudulent intent to deprive*440 the owner of his property and appropriate the same.’ [Eilers v. State, 34 Tex. Crim. 344.] The word unlawfully where used in the instruction does not supply the word felonious, or the words fraudulently, etc., for while defendant may have unlawfully converted the money to his own use, it does not necessarily follow that he did so with a felonious or fraudulent intent, and unless he did so with such intent .he is not guilty of embezzlement, although the statute does not in express terms require that there shall be a criminal intent. [State v. Reilly, 4 Mo. App. 392.] Many things are unlawfully done' which are not crimes, because the criminal intent is wanting.”
And in State v. Schilb, 159 Mo. l. c. 140, the court said:
“The State’s fourth and fifth instructions are challenged upon the ground that they omit to require the jury to find any fraudulent intent on the part of defendant in converting either the money or property of Harris to his own use. It is well settled that no one can be convicted of felony in this State in the absence of an intent to do a criminal act (State v. Noland, 111 Mo. 473; State v. Cunningham, 154 Mo. 161), but such intent in case of embezzlement may be inferred from a felonious or fraudulent conversion. In 2 Bishop’s New Criminal Law, secs. 372, 373, 379, it is said': ‘The gist of common-law larceny is the felonious “taking” of what is another’s, with the simultaneous intent in the taker.of misappropriating it; but in the statutory embezzlement there is no felonious taking, for the thing comes to the servant by delivery, either from the master or a third person, so that the question now is, by what act, after it is received, does the servant commit the embezzlement? The rule of law appears only indistinctly in the books. Still, we may infer from the authorities, and from the reasons inherent in the question, that if the servant intentionally does with the property under*441 his control what one must intend to do with property-taken to commit larceny of it, he embezzles if, while nothing less is sufficient; or, assuming the needful criminal intent to exist, he must and need only do what in our civil jurisprudence is termed “conversion,” defined to be any dealing with the thing which, impliedly or by its terms, excludes the owner’s dominion. To illustrate: if the servant instead of delivering the property to his master or another, as required by his duty, pledges it for his own debt, or runs away with it, or neglects or refuses to account for it, or otherwise wrongfully diverts its course towards its destination to make it his own, he embezzles it. The felonious or otherwise fraudulent intent is an essential element, yet if a man commits the act of embezzlement the presumption is that he means to embezzle.’ [Spalding v. People, 172 Ill. l. c. 55.]
“For these reasons the instructions are erroneous and should not have been given as they were. ’ ’
These cases are cited in State v. Rigall, 169 Mo. 659, and the doctrine therein announced again approved and applied. As early as Witt v. State, 9 Mo. l. c. 673, Scott, J., said:
“It will thus be seen from what has been observed, that there cannot be a larceny without a felonious intent. That the taking the personal goods of another without this intent, may be a trespass, but it cannot amount to larceny. The prisoner, then, might have done every act supposed by the instruction of the court without being guilty of a felony. The instruction defined a trespass, and not a larceny, and it was error to have told the jury that the commission of the acts mentioned in it, rendered the prisoner •guilty of larceny.”
Because of the failure to include the element of criminal intent the court in the case just quoted'from declared that the instruction defined trespass, but not larceny, and so with the instruction in the instant case,
It is urged, however, by the State that the error in instruction number 2, is cured by instruction number 6, but to this we do not agree. In the first place, it will be observed that instruction number 2, purports to cover the entire case, and with such an instruction this court holds, not only in criminal but civil cases as well, that it must include all of the essential elements. It is, of course, different with instructions dealing only with some particular element or phase of a case. An examination of instruction number 6, discloses that it was not intended to aid or supplement instruction number 2, and that it relates only to a matter which the court' declares constitutes no defense to the charge. It is our opinion that it in no manner explains or supplies the defects in instruction number 2.
II. Defendant next insists that the evidence in this case is insufficient to sustain the verdict, but we do not deem it necessary to burden the opinion with any lengthy discussion of that question, as the testimony relative to his acts in connection with the money which had been deposited not only by Robert Boram and A. J. Lang, but also by others, is sufficient to establish the case against him. These acts did not constitute an embezzlement of money belonging to the individual depositors, but money of the bank, because it is well-settled that when money is deposited in a bank and is mingled with its general funds it becomes the property of the bank, the transaction creating the relation of debtor and creditor. The evidence of his “switching” and transferring money
The instructions offered by defendant, and refused by the court, declaring that the charge of embezzlement could not be sustained by proof that individual accounts had been falsified by entries showing overdrafts, were properly refused, because they single out certain isolated facts and give them undue prominence. These facts, as heretofore pointed out, were material and competent as tending to establish certain elements of the offense, and the instruction requested would have been calculated to confuse rather than to aid. This is particularly true in the instant ease, because of what seems to have been defendant’s theory that he did not embezzle from the bank, but, if at all, from the accounts of the depositors, and that the evidence on the whole tended to show only a falsification of the records, when, as above stated, it tended to show the offense charged.
Objections are also made to certain testimony given by the bank examiner, it being said that he was permitted to state as facts his own inferences and conclusions as to what defendant meant when he made certain statements in his presence. Upon a retrial of this cause the State should he permitted to detail in evidence the statements made by defendant in the nature of material admissions and confessions, but the witnesses should state only what he said, and not be permitted to testify to their own opinions, inferences and conclusions.
Because of the error in instruction No. 2 the judgment is reversed and the cause remanded.
