State v. Porter

| Mo. | Jan 15, 1858

Napton, Judge,

delivered the opinion of the court.

Several points have been raised in this case which we will notice in their order.

1. The refusal of the. court to compel the prosecutor to elect upon which count he would proceed is one of the errors assigned. The indictment contains three counts — one for larceny and two for embezzlement. Of the latter, one count is framed upon a section of the general act concerning crimes and punishments, and the other on the 37th section of the railroad corporation act. (R. C. 1855, p. 430.) Our statutes contain some provisions on the subject which would seem to preclude all doubt about the propriety of the joinder of counts made in this indictment. The 23d section of the 4th article of the act concerning practice in criminal cases (R. C. 1855, p. 1176,) says that “ counts for larceny and embezzlement may be joined in the same indictment.” The 15th section of the 9th article of the act concerning crimes and punishments declares that upon an indictment for larceny the defendant may be convicted of embezzlement; and, vice versa, that he may be convicted of larceny oh an indictment for embezzlement. If a defendant can be convicted of larceny where embezzlement only is charged in the indictment and may be convicted of embezzlement where the charge is larceny, it would seem to follow, without any express provision such as is found in the 23d section referred to above, that counts on larceny and embezzlement could be joined.

In point of law, however, and without reference to these statutes, it is not error to insert in the same indictment several distinct felonies, though committed at different times, provided they are of the same degree, and will admit of the same legal judgment. If the several counts refer to different transactions, in point of fact, it is a matter of discretion with the court to compel the prosecutor to elect upon which count he will proceed, and the power ought to be exercised in cases where the offences are distinct and of a different nature and calculated to confound the defence. Where the offences are of the same character, differing only in degree, as, for example, forging a note, and publishing it knowing it to be false, the defendant may be tried upon both charges under the same indictment. It is usual to frame several counts, where only a single offence is intended to be charged, for the purpose of meeting the evidence as it may transpire at the trial; and in such cases the court will not compel the prosecutor to elect.

All the counts in this indictment relate to the same transaction, and are framed on different sections of the statute to meet the evidence which the trial might elicit. The offences charged are not repugnant, but will admit of the same judgment. (Wharton’s Am. Cr. L. 204; 1 Chitt. Cr. L. 235; People v. Rynders, 12 Wend. 425" court="N.Y. Sup. Ct." date_filed="1834-10-15" href="https://app.midpage.ai/document/people-v-rynders-5514359?utm_source=webapp" opinion_id="5514359">12 Wend. 425; Wright v. The State, 4 Humph. 196.)

2. The 39th section of article 3 of the act concerning crimes and punishments provides that if any clerk, servant, &c., shall embezzle, &c., without the assent of his master or employer, any money, goods, &c., belonging to any other person, which shall have come into his possession or under his care by virtue of such employment or office, he shall be punished, &c. It is insisted that the words “ any other'person” in this section mean any other person than the master or employer; and consequently that embezzlement of money or goods belonging to the master himself is not within the provision. This section is substantially the same with the section of the New York code on the same subject, upon which the supreme court of that state passed judgment in the case of The People v. Hennessy, 15 Wend. 150. These words are there adjudged to mean any other person than the servant who is guilty of embezzlement.

The section was designed to embrace the provisions of two English statutes on this subject, one of which (21 Hen. 8, ch. 7) makes embezzlement of the goods of the master felony, and the other (39 Geo. 3, ch. 85) punishes in the same way the embezzlement of the money or goods of third persons coming to the servant’s possession on account of or to the use of the master or employer. In combining or condensing these two provisions into one the phraseology has been made somewhat awkward, if not obscure, but it is obvious that any other construction than the one adopted in New York would defeat the principal object of the statute. The intent of the section is still apparent, and in borrowing this provision from another code the legislature may be considered as adopting its settled' interpretation.

3. The 5th instruction given for the prosecution was as follows : “ It is not necessary that the 'State should prove by direct and positive evidence that the conversion (if they find that there was any such conversion) was without the consent of the Pacific Railroad Company ; it is sufficient if from the evidence the jury are satisfied that it was without such consent.” It is undoubtedly true that where, in offences like the one charged in this indictment, the prosecution attempts to establish the non-consent of the owner of property, the owner ought in general to be called ; but it is well settled that the testimony of the owner is not exclusively primary evidence of the non-consent. It may be inferred from circumstances attending the transaction. (2 Russ. 737 and cases there cited.) The case of Williams v. East India Co. 3 East, 193, does not conflict with this rule. In that case it became important to establish a notification to the agents of the shipowners of the inflammable character of some goods put on board their vessel by the company; and the company’s agent, whose duty it was to have apprised the ship’s officers of this circumstance, was not called upon the question of notice, and no necessity was shown for resorting to secondary evidence. In the present case it is obvious that the only proof attainable of the non-consent of the Railroad Company must be of a circumstantial character. The president of the company was examined, but neither he nor the treasurer nor any other officer had any authority to consent to such misappropriations of the company’s funds as were charged upon the prisoner. No nearer approach to direct testimony would have been made by calling the treasurer, unless it could be shown that this officer was invested, by the charter or by-laws of the company, with some power to permit appropriations of the funds, such as were sought to be established in this case ; and there was no pretence that any such authority existed.

4. The third count is based upon the 37th section of the act concerning railroad corporations (R. C. 1855, p. 430), and it is alleged that the count is defective in not averring a demand on the part of the company and a refusal to pay over on the part of the defendant. A demand and refusal constitutes no part of the offence, as an examination of the section will show ; they are merely evidence of it. Nor do we suppose that it was the intention of the act to make this the only evidence by which the offence could be proved, for it is not so declared. The evidence of demand and refusal is merely cumulative. The prosecution was not deprived oi any other mode of proof which was legitimate previous to the enactment of this provision. It was therefore unnecessary to aver or prove a demand and refusal.

5. The blank return read in evidence at the trial was objected to on the ground that it was not the best evidence which was in the power of the prosecution, as it did not appear that the defendant had ever seen it or that it had ever been in his possession, and as it did appear that the prosecution was in possession of the blanks which the prisoner had used and filled up. It is insisted that these latter should have been produced. In the case of Rex v. Watson, 2 Stark. 130, where it appeared that a number of placards had been printed, and the prisoner took twenty-five of them away from the printer’s, it was held that one of the remaining placards could be read in evidence without any preparatory proof as to the original manuscript or any notice to the prisoner to produce the copies he had taken. Bayley, Judge, said, that they are all originals — duplicate originals; that one duplicate could be given in evidence without producing the other; that when a .manuscript was printed all the printed copies became originals ; the manuscript (as he expressed it) was discharged; and as they were all from the same press they must all be the same. The printed form used in this case was merely to show the course of business pursued by the defendant and required by the rules of the company in the discharge of his official duties as ticket agent.- The copies of the printed forms containing these rules and returns, which he had filled up and transmitted to his employers, would have been no better evidence of the fact intended to be explained than the copy offered in evidence. They were all originals and proved to be duplicates. (1 Greenl. Ev. § 90.)

6. Conceding that the corpus delicti must be established by proof other than the confessions of the prisoner, we are unable to perceive any ground upon which the verdict of the jury can be complained of by reason of the absence of testi- ' mony on this point.

In cases of embezzlement, the proof of the corpus delicti must of necessity be of a circumstantial character; and the testimony of Phelps, taken in connection with other facts proved, may be considered as very strong, if not conclusive, corroboration of the prisoner’s confessions.

7. In relation to the admission of testimony for the State out of its usual order, the case of Rucker v. Edwards, 7 Mo. 9, is conclusive that this was not a matter of error.

It is unnecessary to refer specifically to each' instruction given or refused in this case. All the points of law arising on them, which have been insisted on here, will be found embraced in what has already been said relative to the testimony and the construction of the statutes on which the indictment was framed. There are other instructions refused, to the refusal of which formal exceptions were taken on the trial, but nothing has been said about them here, and the reason for their refusal will appear upon inspection.

Judgment affirmed;

the other judges concur.