*1 SUPREME COURT MISSOURI, OF Stаte v. Ross. days. engendered feeling Some were dnr and friction nothing Lig but see we re trial, Argament fairly preju marks can be considered as jury. to proponents and to will extend dicial opinion by setting lengthy already them out. too judgment tried, is affirmed. The case well Bailey, sitting. C., not foregoing opinion PER CURIAM: The Higbee, opinion adopted All is court.
C., judges concur. Appellant.
THE STATE v. W. ROSS, DONALD Two, January 6, Division 1926. Appointed by Embezzlement: Public Officer: INDICTMENT: Virtue
1. (Sec. 3334, 1919), of Constitution. Under the statute R. S. declar- any officer, appointed ing that “if or virtue elected State, etc., any thereof,” of this or law it is not neces- Constitution sary indictment, charging Special Deputy that defendant as that the embezzled the funds of Finance insolvent bank appointed by charge, allege that he was in his o£ Consti- It sufficient State or law thereof.- his tution of this character, money that he received virtue of office official Commissioner, fraudulently Special Deputy and that he feloniously same his own converted the use. on Indictment. Indorsement The trial court did not 2. WITNESSES: judicial permitting the names three ma- discretion abuse permitting indorsed on the indictment witnesses to be terial testify, their where counsel for the after names were them indorsed, go day case to the next to let the over in order that offered depositions so, might if he desired take their to do defendant declined. the offer Money. public Investment aWhere official EMBEZZLEMENT: 3. money embezzling of a in his bank hands evidence with is showing pertain- the competent. the transactions he invested how ing investment to the Testimony --: of the cashier of St. Louis bank that Venue. 4. payable check a cashier’s to a local he made'out certain aon defendant, company it to telegraph delivered the check paid by bank, showing was thereafter its that it face itself sufficiently embezzlement occurred al- shows that City company telegraph to Kansas wired the though pay sold to defendant. stock for bank used there Vol. TEEM, OCTOBEE
State Ross. Incorporated Immateriality: 5. -: Bank: Variance. Where the shows evidence that the bank was taken over the Commissioner Finance; put that defendant was it as *2 Finance, aрpropriated his Commissioner of and that its use, incorporated, immaterial for whether the bank guilty incorporated.. he was of embezzlement whether or not it was being proven, And facts those there was variance between the no although proof, incorporation indictment and alleged of the bank proven. but not Deputy Appointment by 6. -: Commissioner: Virtue Instruction: Although appointed Deputy of Special Constitution. defendant was by statute, of Commissioner Finance instruction virtue of the upon charge embezzling for the in his trial a funds of charge Deputy requires Commissioner, a bank in his as such jury appointed by Constitution, find that he was virtue of the unnecessary is not erroneous. It was to men- for instruction stаtute, tion either the Constitution or the no where there was relating appointment. apparent Besides, issue to his it is that the “by words virtue of the Constitution” were clerical error. telling -: -: -:
7. As Trustee. An instruction jury they duly find if that defendant “was the constituted appointed agent Special Deputy Commissioner of Finance of agent the State such of Missouri and as was the Finance agent Commissioner of the State” that as such possession Commissioner he took his “into and had under care his control trustee for and on behalf the said by Bank, office, $28,250,” etc., under and of his er- virtue is not although roneous, agent it uses the words “as trustee.” As deputy, charge up affairs, bank its to take and wind he was agent Finance, held Commissionеr taken by bank; charge him as trustee for said but the instruction valid would have been without the “as words trustee” and their impair legality. use its therein Warning. sharp posi- -:8. The statutes this are officers, warning public persons tive bank and other officials oc- cupying positions that, of trust confidence however innocent may they they be, guilty their are if intentions of embezzlement moneys use, whatsoever, convert to their own manner re- ceived them virtue such trust and confidence. Law, J., 1572,p. 87; 2027, 767, p. 796, Criminal 16 C. Section Section n. 54; 60; p. 797, p. 341, X, 3689, Embezzlement, n. 84. n. 20 C. n. 17 C. Section 22, 458, X, p. 437, 71; 55, p. 63; Section n. Section n. Section New; 467, 70, 478, 91;
p. p. 476, 78, 79; 72, p. 21 n. n. n. Section Section 53; 82, 60; p.'484, 86, p. p. 490, 486, n. Section Section 79 84; Section n. n. 87, p. Section n. MISSOURI, SUPREME COURT OF City Appeal John Louis Circuit Court. —lion. from St. Judge. Calhoun, W. Affirmed. Doyle Cosgrove appellant; $ S
Bass Bass counsel. public
(1) being officers, relative These laws by public powers prescribed law, court are whose they cognizance make a do not judicial will take agents, Finance or trustee deputies special deputies behalf of and on a bank or been taken that has thereof. State laws under said
said officers Higgins, 649; 124 Mo. 192; White, S. 11673 to 142; Mo. Secs. Gates, 67 ex rel. Clark v. *3 (a) p. No trustee 393. 1921, Laws 1919, R. S. neither alleged in the indictment, set out and as existed any nor law by State of the Constitution virtue being for into be- came “trustee” No thereof. Day Night Virtue of the under and & half of the powers duties of the defined laws that created agents, deputies his or Commissioner, Finance deputy special commissioners. Sec. R. S. finance 80 585; Cleveland, 126 Hall, Mo. v. v. 1919; State People 564; Shearer, 5 v. v. Mo. State, 108; Hamuel Mo. (b) in- Kan. 797. Hubbard, v. 58 66; State 143 Cal. charges then the accused “did and there re- dictment possession and have under his his into and take ceive Night on behalf of the trustee control as care money alleged feloniously been Day to have Bank” & language It in should, converted. embezzled based, indictment have been the statute did then distinctly defendant and there that the possession and have under his into take receive and money question, trustee'the as control care and reposed “by trust him virtue of came to allegation.” good such without “No indictment him.”
[1] Yol. 1925.
State v. Ross. Law, p. Harmon, 655; State v. 106 Mo. Clark’s Crim. Tipton Bishop 269; Law
274; v. 53 Fla. Criminal State, (Ed. 1923) Zingher, 650; Sec. se"c. 302 Mo. 352; State v. (2) permit prejudicial error to
3334,R.
It was
S. 1919.
jury
sworn,
after the
had been selected and
upon
of six
endorse
the indictment herein
names
request for
new
and to refuse defendant’s
witnesses
resetting
or
as
him
continuance
of the case
to enable
so
prepare
testimony
to meet the
witnesses.
new
(3)
State v.
349.
Pearson,
S. W.
defendant’s
motion in
nature
a demurrer
should have been
given, (a)
prove
alleged
Because the State failed to
as
alleged
being
the venue of the
offense
at
City.
St. Louis. The
of the offense
venue
was Kansas
Bouslog,
Mispagel,
v.
73;
266 Mo.
State v.
207 Mo.
(b)
557;
Bacon,
170Mo.
Because the Stаte
any
prove
alleged
failed
manner or form as
Night
incorporated
Day
duly
banking-
&
awas
organized
existing
institution
under
virtue
(c)
alleged,
the laws
of Missouri
Be-
prove
appellant
cause
State failed
that the
was a
either in
trustee,
fact or
or
law,
that he received and
position
took into his
and had under his care and control
money alleged
as trustee the
to have been embezzled, or
that he embezzled said
as a trustee for and on be-
Night Day
Bank;
half of the
or that there fidu-
ciary
appellant
relation
Day
between
any appellant
Bank,
by
that there was
that came to
reposed
Night the trust
in him
Zingher,
Kelly’s
Bank. State
302 Mo. 659;
Criminal
*4
Ed.)
(3
Law
241;
sec.
State v. Brown, 171
480.
Mo.
Attorney-General,
Robert
Otto, and W. F. Frank,
respondent.
Attorney-General,
Assistant
(1)
properly charges
The indictment
the crime of
embezzlement.
3334,
Sec.
R. S. 1919;
v.
State
192;
Clarkson,
59
149;
Mo.
v.
State
191
Larew,
Mo.
State v. Mo-
254
(2)
398;
Mo.
State v.
reaux,
Julin,
494 SUPREME ( Ross. v. State Laugh- charge. supports sufficiently State v. evidence McCawley, 871;W. 180 S. 180 Mo. State 342; v. lin, Meininger, 268 v. S. 680; Mo. State Martin, 230 (3) the indict- no between There variance 79. was W. ment Meininger, proof. 79; State S. v. State W- (4) numbered one Instruction 699. Martin, Mo. v. properly Noland, v. law of case. decláres the Meininger, 268 473; State S. W. 111 Mo. reading and briefs the record
RAILEY, C. After reached the conclusion have counsel, we respondent as made counsel statement hereby adopt substantially correct we case is State’s аs follows: same containing Appellant charged in an indictment was City of the into the Circuit counts,' two returned Court 1923, June, with Louis the second St. moneys Night Day& $28,250, embezzlement jury in court and on a Bank. He was tried before guilty of embezzlement 5, found as December was pun- and his in the count of indictment first ’ imprisonment years at five ishment assessed Penitentiary. Judgment and sentence were in rendered conformity appeal from verdict, with the was taken to this court. evidence shows that the State’s banking doing general institution and
Bank was bank- prior January, ing business taken 1922. At this time it over the Finance was De- appellant partment of the Missouri. Special Deputy appointed Finance, Commissioner of business, placed such аffairs and property Bank and authorized to the bank, all debts due convert the collect assets into liquida- after cash and otherwise look and care for the He of said tion bank. business appoint- of this from bank the date of Ins Special Deputy February, ment Commissioner until engaged during time was liquidating *5 Yol. 1925.
State v. Ross. of affairs said hank. The Commissioner Finance Liberty Company selected Trust Louis Central Pay depository Night aas for the funds of & kept during liquidation. Appellant time it Company, Liberty two accounts with Trust Central styled one his an account account, individual other Special Ros.s, “Donald Commissioner of Fi- Night Day nance & Bank.” appellant 14th en- November, 1922, On option agreement tered into written with оne Z. T. Briggs purchase ten shares five hundred and City, of stock in the West Side Bank Kansas Mis- seventy-five agreeing pay the sum souri, therefor per provided pur- This contract share. that this dollars seventy-two chase be should consummated within hours Appellant from from its date. withdrew the funds of the Night Day deposit Liberty Bank on in the Central Trust Company of St. the sum of $28,250, Briggs part payment delivered it to Z. T. five hundred and ten shares stock in West Side State City appellant purchased by Bank Kansas from T.Z. Appellant Briggs. payable drew check to himself in the against sum the funds of the Liberty deposit Company, pre- in Central Trust sented this check to the First National Bank of St. Louis requested said bank to issue to him a cashier’s cheek in presented sum $28,250. First National Bank Liberty this check to Company Central Trust and re- ceived in return therefor payable a cashier’s check to the order of the First National Bank in the of $28,250. sum The First National Bank then issued cashier’s check in Special Deputy, favor D. of W. $28,- the sum of Appellant away. Shortly took this check and went thereafter, returned to the First National Bank and re- quested that the cashier’s check be re-issued in favor Telegraph Company, the Western Union which was done by the First National Bank. appellant At the time re- ceived the check cashier’s from the First Bank, National MISSOURI, OP COURT SUPREME manager of said assistant Henderson, Mr. he stated to mortgage Bank held a second bank, that *6 necessary, Joseph, wаs and it near St. on farm located a mortgage, this protect to have second in order to money by written check check. The form a cashier’s Night' against funds of the $28,250 in the sum Ross by Liberty Trust Central was cashed Spec- Company Ross, of D. W. to the account appellant After received ial Commissioner. Telegraph payable Union Western check to the cashier’s Company, this cheek to he delivered as above stated, upon receipt of Telegraph Company, and Union Western immediately company telegraph forwarded said check City, by to Kansas Missouri. $28,250 the sum of wire Briggs appellant T.Z. between into entered contract provided by appel- purchasе certain bank stock in es- contract was held stated. lant as heretofore This Secretary by Trust Mr. of the Commerce Dillon, a crow Company City, Missouri. Dillon identified Kansas Mr. received the Western Union a check he from Exhibit V as Telegraph receipt Company VI delivered Exhibit Telegraph Company time at- the Union the Western company. V from He further Exhibit said he received of the check that the indorsement the back testified handwriting signature, and is his Exhibit V his marked Briggs. this check to Z. T. Mr. Dil- he delivered and that at the time he delivered the check to lon testified that also Briggs, stock of the Side he West Mr. delivered City Mr. he Ross; Kansas that received the Bank of prior Briggs Z. T. to the time he delivered from stock to Ross.
Appellant $28,250 drew the check admits that he against Bank. the funds of was follows: for defendant The evidence Empire bookkeeper Magee, Transfer H. City, Company Kansas testified substance exchange December, 1922, in November and he was that City, Bank Kansas at the Side State that teller West 1925. Vol. a draft drawn defendant
he had to honor occasion November, and 29th of the 21st the sum of between failed above State Bank 1922; that West Side destroyed papers; that defendant’s other draft general reputation with good. veracity On
for truth and that draft testified witness cross-examination, secured Bank, and was drawn on the West Side by the was taken over bank; that the latter stock of said (witness) paid Finance; рresident said bank draft; defendant Ross was the files last with closed; when it that he saw said.draft of said bank about December had in substance that he recalled,
Emil testified Bode, deposits defendant D. W. made before him the Special Deputy, 1922; defendant’s November *7 showing deposit slip said a Exhibit I a made on date Deputy, Liberty deposit by Special in the Ross, D. W. Company, one of $11,700; Central Trust the sum that they for that $4,700; item for and the other $7,000 was 2, marked Exhibit cash; were not that defendant’s check represented $4,700 one of that the on amounts; deposit slip a check. On he tes- was cross-examination deposits covering $11,700 items were tified that two personal defendant checks; that he believed had a аc- Liberty Company Central count Trust that it at kept separate from and distinct his official was account as Commissioner. Mimpliy,
Leonard who was teller the West Side City, Kansas had of Commerce he bought West Side known defendant since the latter general repu- that 1922, Bank in his November, honesty dealing good. tation and fair for defendant, Donald W. own Ross, the testified his substantially That he follows:. the defend- behalf as case; 28, that November he 1922, ant on had an ac- Liberty Company Trust at the Central in the count name Special Deputy Ross, D. W. Commissioner; that on deposited designated check, date he de- the above deposited on Exhibit the same 2; fendant’s that he Sup. 312 Mo. —32. COURT OF MISSOURI, SUPREME Ross. account;
a draft for the same $4,700 it was drawn that on the $5,000 Side aforesaid to cover West selling Bank; worth of notes he was West Side State personal money, for that it his own and the check represented personal money; also these $7,000 his that amounting deposited items, two to $11,700, were on No- from de- 28, 1922; vember that aside he had $11,700, posited Liberty Company in the Trust of his Central 'money $14,000 between of D. $13,000 the account Special Deputy Commissioner; drew that he check that for account dated November $28,250 represented personal that this last-named check 1922; his in account; funds of that at the he time drew personal for above he had $28,250 check account Liberty Company; personal Trust Central his he used account for current that he transactions; was accumulat- ing buy funds his own bank stock; that he up know became $13,- what checks made private deposited 000 or $14,000 his funds, in the official that he out of account; the official drew account on accumulating numerous occasions; he was a fund ovpi buy an interest in the West Bank. Side State covering marked 1 defendant, exhibits slip check for $11,700 were offered in evidence. being testified,
Defendant recalled, that he drew the check marked State’s Exhibit 9 and that $5,601.24, signed capacity. the check in his official evidence for State on rebuttal was follows: *8 public
W. G. Loeffler, audited accountant, a the ac- Special Deputy count of D. W. Ross, Bank Commissionеr Day of & said Bank. He testified that on April 3,1923, there was á conversation in the office the of Liberty Building Central Trust which Messrs. Mills- paugh, Francis, Case, Gilíes, Kenner Ross, defendant and present; they discussing himself were were $28,- said 250 check; that a number of checks were then shown de- “he said Used of Ross, fendant and he the funds some had Vol. 499
State v. Boss. Night Day he had of for his own tlie uses n put in the fund.” some back testimony rebuttal was offered Some other importance to but we do not deem of sufficient part encumber with it a this statement. the record of as Appellant guilty count I. found under the first omitting for- indictment, which, „ " , ,, , , Indictment: parts, mal as reads follows: Appointed, How jurors grand of Mis- “The the State of city body Louis, of of and for the St. within souri, сharged, duly impaneled, sworn and in court now here upon present, 28th that Donald Ross on the their oath W. twenty- one thousand nine hundred and November, of city Missouri, of in the Louis State of two St. appointed duly agent constituted and
then and there Special Deputy of Commissioner Finance of the State agent of as such was the of the said Missouri, and Finance liquidation to assist in of aforesaid, Commissioner Night Day& Bank of Louis, and affairs business of St. incorporated duly banking organ- Missouri, a institution, existing of under and the laws ized and doing State of business as such Donald Missouri; that the said Louis Special Deputy agent Commissioner Missouri as then aforesaid, Finance money, collect and authorized to receive therе Bank of St. Mis- said corporation, aforesaid; as that the Donald W. souri, agent Special Deputy Commissioner as Ross of Missouri as then aforesaid, Finance and take into his and have and there receive his care and control as trustee and on behalf under Night Bank of St. Louis, Missouri, of the said corporation banking under and virtue of aforesaid, agent Special Deputy position as said his office and twenty-eight aforesaid, Finance fifty dollars, lawful thousand, two hundred twenty-eight of the value of thousand, the United States *9 SUPREME COURT MISSOURI, OF v. Ross. State fifty money personal two and dollars, hundred the property Night Day& Mis- Louis, of the said of St. corporation banking said souri, that the aforesaid; a Donald Ross on the 28th of November, 1922, twenty-eight fifty said thousand, dollars, two hundred and twenty- money lawful of the United States value money eight fifty two hundred thousand, dollars, Night Day Louis, of the said Bank of St. banking corporation a Missouri, received, so aforesaid, had did control, and under his care and feloniously fraudulently then and there embezzle and convert use, to his own without consent Night Day banking Bank of a Louis, St. cor- poration as with the fraudulent aforesaid, felonious and permanently deprive intent then there owner, Night Day& the said Bank of Missouri, bank- ing corporation as aforesaid, thereof; the use and so twenty-eight thousand, said Donald W. the said fifty two hundred and lawful dollars, the United twenty-eight States of the value of two hundred thousand, fifty personal prоperty dollars, the banking Bank of St. Louis, Missouri, a corporation as then and aforesaid, there in the manner fraudulently feloniously and form aforesaid, take, carry away steal aud use, and convert same to his ’’ against peace dignity of the State. Appellant quash filed a motion the indictment alleged assignment several reasons therein. His first charges allege that: error “The indictment fails to ap- whether W. Ross, Donald accused, officer pointed by virtue of the Constitution ’’ law thereof. opinion'that
We are of above contention sound, 'not is it sustained nor the two authorities cited. statutory rape Barnes, 281 Mo. case, way subject in no discusses embezzlement. We held case abоve order to sustain a convic-- rape, being tion for under the then statute considered, appear must from the information that defendant was Yol. alleged
over when the offense age seventeen years *10 was charged committed. The information defendant that over above aver- years sixteen of We held that the age. ment was then allegation to he equivalent was over years seventeen of age. Flint, on is that other case relied of State will
Mo. l. c. 398-9. The most casual of this case reading not sustain defendant’s con clearly indicate that it does to before us. The defendant applied tention as the facts Daviess County, Sheriff Collector of with crime of On charged page the embezzlement. in the in 398, Wagner, J., sufficiency the considering to said: “It that he converted dictment, is collector, while he was in office as sheriff use, belonging sums of large money such, received him as to revenue, the was sufficient.” county state Wagner On “The 400, Judge said: indictment page ‘ way that defendant own use alleges did convert to his way investment in and make property merchandise, ’ with and public money. the The offense secrete consists in investing the or or property merchandise, with and same. Both of these way secreting the making cannot with It is im- money. physically be done the same was invested in possible. mer- If not be with or chandise, way could made secreted been in- sense of the statute. The defendant should have formed which of these upon charges substantive to They called answer. constituted distinct acts upon if separate offense, modes of committing and, it was they intended to have arraign each, should accused been in different counts. For inserted this reason first was manifestly count bad. The will argument same to think it apply count; and we was objection- second also able of its defective allegations agency. account It merely stated that defendant was the agent county. State and It should have when and how alleged he was and the for his appointed authority appointment.” in 1921 Assembly (Laws General p. 393) department of finance, be under created MISSOURI, SUPREME COURT OF management Com- called the officеr, control and of a chief appointed to be Finance, missioner of who was Senate, and consent of the Governor, with the advice pleasure daring was to said office the Governor. hold required give is $25,000 He bond the sum of salary per finance de- to receive a annum. Said partment powers, has with is vested extensive private relating banks, the laws execution companies, Act, 6 of etc. above banks, trust Section Finance, page provides with approval appoint a shall Governor, Com- possess qualifica- the same Finance, missioner who shall required for the Commissioner of Finance. He tions required perform required such duties as shall be *11 of Finance. Hе holds of- him Commissioner during pleasure Finance, fice of Commissioner required give an- $15,000 is bond and to receive an salary per nual of etc. $3,000 annum, of the indictment set
The first count heretofore out in discloses its full, and that on November face, Donald 28, 1922, the held the defendant, office “Deputy of of Finance in this State as agent, control and under the Commissioner Fi- part deputy that it was nance; defendant’s duties, liquidation to assist in the aforesaid, of the business and Night Day affairs Missouri; of St. Louis, deputy he as such was authorized to collect and re- money, belonging Night Day ceive to said Bank; that as he such, received and took into his and under his control for behalf of bank, and in said lawful money 28th States, etc.; оf the United that on said feloniously fraudulently he November, embez- 1922, to his own use the aforesaid, zled converted with the felonious and bank, said fraudulent intent to deprive permanently Bank of use that in the manner and form aforesaid fraud- thereof; ulently he feloniously carry away steal, take, clearly use, convert said to his own etc. It thus from the appears 1921, indictment Laws and afore- Vol. 503
State v. Ross. that on November said, 28, 1922, appellant under officer Missouri. the laws of
Section Revised Statutes that: 1919, provides any officer, “If or elected virtue appointed Con stitution of this or any . . . shall thereof, law convert to his own use, any manner . . . whatever, moneys any may have him come to or them of his or their office or official by virtue position, - reposed in trust ... them, every such officer, agent, . . . shall, upon punished be in the manner conviction, kind prescribed or the value stealing of the article so embezzled, converted, or secreted.” taken are opinion, aforesaid, the indictment
We clearly informed defendant of fully charges trial, would be called meet and that upon is sufficient as to form and both substance. v. [State 59 Mo. v. Clarkson, State 107 Mo. 149; Manley, 364; State 211-12; v. 108 Mo. l. Adams, c. State v. 110 Mo. Gilmore, 111 6; Noland, l. State v. Mo. l. 484-5-6-7; c. c. v. 184
Lentz, Mo. l. c. State v. 185 239; Mo. l. 163- Knowles, c. v. l. c. 4; State 191 Mo. 197 Blake- Larew, fol.; 226 Mo. v. 560; State 254 l. more, Moreaux, Mo. c. 405; l. v. c. Julin, Mo. 270-1.] In l. c. Noland, Mo. the defendant was in the indictment with embezzling state funds. J., in discussing said: indictment, “To con Gantt, stitute embezzlement under this indictment, it was neces sary charge the official character of the defendant, *12 of the virtue of moneys his office receipt as treasurer his fraudulent felonious conversion to thereof own use. indictment does.” This the In the charged case at bar defendant was with being officer, Commissioner of to-wit, Finance. He with in being was the money & Day Night St. Louis of his said alleges and the on office, indictment that No- 28, vember as such officer, $28,250 he embezzled belonging lawful the States, Night United to Bank. Day sufficiently indictment with complies MISSOURI, SUPREME COURT OF Ross. equal previously applies with
thelaw. What we have sufficiency questions raised as the force to the other to the trial committed hold, indictment. the court We quash appellant’s the overruling to no motion error overruling in arrest nor in the motion indictment, judgment. brief, propositions and three of this
II. Under two permitting appellant charges error in the the court with , of certain witnesses to be indorsed names Indorsement indictment, permitting and in such wit~ of Witnesses. testify to in the case. nesses Only examined these were three of witnesses employee Berger, an Helen Western State, to-wit, Company George Telegraph Dil- Union lon City. Briggs, T. Kansas wit- Z. both These they had transactions which examined about nesses were al- and related.to the Donald W. with defendant Night leged belonging to $28,250 embezzlement of Day Bank. after names Counsel permittеd indorsed were to three witnesses be go until the let case over follow- offered to indictment, might ing day deposi- that defendant in order take This these if he desired to do so. new witnesses tions progressed. After offer was and the trial care- declined, fully ruling the facts in connection considering with the guilty to that the trial court, we decline hold court judicial of an abuse of discretion under circumstances respect foregoing to matter. above as- aforesaid, accordingly signments are overruled. error points under III. Counsel contend, permitting witnesses committed, Dillon and error regard testify Briggs the transaction, in pay Briggs Dillon $28,250 sent Investment. for 510 shares of stock in the West Side State City, important Missouri. This was an of Kansas tending to circumstance, show embezzlement of the belonging Bank; to the *13 TERM, 1925. Vol. y. Ross. telegraphed day, was thus embezzled the same City pay be which was to
to Kansas for stock there, to No error was committed turned over to defendant. ruling.
respect to above A at the conclusion of IV. demurrer evidence the case was It is claimed it have overruled. should sustained, alleged been because the venue of the Ventie. offense was not shown to have been in the Missouri. Mr. R. I. assistant Louis, Henderson, St. manager of First National Bank of Louis, St. request de
testified on November at the that, 28, 1922, made $28,250 fendant payable he had a cashier’s check for Telegraph Company and to the Western Union delivered the to defendant. check is marked same Said as defendant’s Exhibit 3, and on its face that shows paid by was the First National Bank of Mis Louis, St. clearly appears November
souri, Hence, it from the evidence of the funds deposited in the name as of Donald RossW. Special Deputy was Commissioner, checked out defend Telegraph ant and delivered the Western Union Com pany pay Louis, Missouri, St. for defendant’s Kan City stock. The embezzlement sas occurred St.
Missouri. question
V. The as to whether the incorporated, simply Louis, Missouri, private bank, is immaterial in this case. It taken over „ , , bv the as State’s Finance , , „ Incorporated , put a bank, and defendant was m Bank. of same as Commissioner оf Finance. appropriated If he said bank use, guilty indictment, of embezzle incorporated whether bank was ment, or not. variance
VI. There was no between the indictment proof testimony and the shown heretofore set out. MISSOUEÍ, COURT OF SUPEEME Ross. *14 one, instruction numbered
VII. It is that claimed required given by it erroneous in this that court, the Deputy Special jury appointed the to find defendant was n the of of Finance, Commissioner Appointrnent~ "Constitution," appointed when he is to said unnecessary in for the statute. It was office under or “stat mention “Constitution” struction to either the foregoing, error, it was a clerical ute.” Aside from of the and did affect the merits case, which could not counsel discloses, The record tender an issue of fact. objection special appellant, one instruction made a given, no such criticism at it mentioned the time was and hypercritical, objection and devoid the above. slightest of merit. also criticised because
VIII. instruction one is Said Day incorporated Night & Bank mentioned the it was when the evidence disclosed that institution private of If the defendant embezzled the funds bank. charged, guilty he is of the crime said'bank, whether assign- private incorporated bank or a bank. This ment of error is likewise without merit.
IX. instruction one reads as follows: Said you “If believe and-find from the evidence in beyond light a rea court’s case, instructions, city that at the Louis and sonable St. State doubt, 28th on or Missouri, November, 1922, about the years prior time within threе fil Instruction: ing case, of the indictment in this the def end- As Trustee. ap Donald was then and there ant, Eoss, W. pointed Mis virtue of Constitution State of Spe appointed duly agent constituted and and souri Deputy Mis Commissioner of Finance of State of cial agent and as such the Finance Commis souri liquidation Missouri, to assist in the sioner of the State of Day Night & and affairs of the Bank of the business you further find that said Louis, Missouri, St. duly in- Bank Missouri, St. Yol. organized existing un- banking
corporated institution, of Missouri and the laws of der virtue of doing St. Louis as such business agent and Donald the' W. Missouri, Deputy of the State Special of Finance you authorized and there was then find, if so property of the said to collect and receive Day Louis, Missouri, agent Sрecial as said Donald Ress afore- Missouri as Finance of the State Commissioner of take you then and there receive if so said, find, control and have under his care into his Night & of the said for and behalf as trustee *15 office and virtue of under his Missouri, Louis, St. position Special agent Commis- and and as such twenty-eight you thousand, if so Finance, find, sioner of fifty the United dollars, lawful hundred and two you was the further find that the same and States, Day personal property Night & St. Bank thirty dollars or and was of Missouri, value Louis, Ross,' at Donald W. defendant, that the said more, there then and Missouri, and State of of St. Louis intentionally unlawfully, feloniously, fraudulently twenty-eight the said convert to his own use embezzle and any part fifty or there- dollars, hundred and thousand, two thirty more, or amount and vаlue dollars of an of, intentionally feloniously, fraudulently unlawfully, so use, same his own with- and convert the did embezzle Day Night & Bank of the said consent of out the unlawful, felonious fraudulent and with use his to convert the same to and there intent then deprive permanently and to you defendant, its will find consent', without
thereof, guilty of embezzlement as Donald W. punish- indictment and assess his first count penitentiary imprisonment term of-
ment years years, more than five and un- two not less than you acquit you will the defend- find the facts be so less ant. MISSOURI, COURT OF SUPREME Ross.
“Feloniously, instructions, used these means as wickedly against the law.” the admonition of objects Appellant, in his also to said instruction brief, ‘‘ upon nó which as There was evidence one, hypothesize follows: jury the instruction, and submit to the question, take Donald Ross did receive and whether under care his and have and control as into his Night Day& trustee, for and on behalf of St. tweihy-eight thousand, two hundred Louis, Missouri, fifty dollars.” through Finance, Commissioner of had its Night property Day
taken over Bank. all the Commissioner of Finance directed this agent defendant, as charge deputy, property take up doing, and to wind its affairs. In Bank, so agent Finance, he was the of the State Commissioner of taken held him trustee given, instruction, said bank. The would have been valid the words “as trustee,” without use of and did impair by inserting legality of same said words.
X. Instruction heretofore out one, set and consid only appellant’s is the one discussed in brief. еred, "We carefully examined the other have instructions and find respect if error was committed to.same, appellant receiving instructions other were more liberal than the law contem instructions, *16 opinion plated. We are that the instruc gave least, all he was entitled defendant, tions to under against that no error was committed him law, complain. legally can ITe received fair and which he upon impartial convicted clear and was con trial, by vincing preceding proof as shown statement. Manley, 107 Mo. l.
In c. 370-1, Gantt, J., considering embezzlement said: case, object purpose prohib- the statute was to
“The punishment moneys the conversion of re- severe it position fiduciary certain virtue of official ceived It was to named therein. enacted with a view relations Yol.
prevent tendency pub- growing of those intrusted with moneys speculate per- lic and trust to their funds, own aggrandizement. sonal accomplish purpose,
“To deemed best this say your to officers You not trustees, shall convert to moneys you own in by use manner whatever the have your public good received trust. in- Your moneys your not tentions will restore these invest- after proved many ment has disastrous. It matters not you honestly you safely public cases think can invest funds and will be able restore when for. them called They placed your purpose. were not hands such a you your bankruptcy To dishоnor, save from sureties from you pro- attempting will loss, we from deter- such a ceeding. Experience justified Legislature coming taught many to this conclusion. Observation had well-meaning disgrace men had been their lured to by converting and ruin the trust funds in their hands private having attempted their own ends, and, lost, to cov- up good er their and make the trust funds charges false and vouchers.” ' warning thus court sounded in applicable existing to-day. country is conditions in the occupying positions If officers of trust and em- confidence, placed they bezzle in their funds should ex- hands, pect punishment legal from to be relieved on such tech- presented nicalities as are in this case. judgment right party below for the ac- Higbee,’C.,
cordingly affirmed. concurs. opinion foregoing PER CURIAM: The Railey, opinion adopted
is C., as the All of the court.
judges concur.