132 Mo. 332 | Mo. | 1896
The defendant was indicted at the July term, 1894, of the St. Louis criminal court for the embezzlement of a certain negotiable promissory note, payable to his order, executed by the Suburban Realty Company, a corporation of which he was treasurer, and others, but which had not yet been issued or delivered. He was. duly arraigned, and was granted a change of venue to St. Charles county, • where he was tried, convicted, and sentenced to the penitentiary.
The indictment (omitting formal parts) is as follows:
“That Lovell W. Stebbins on the nineteenth day of July, 1893, in the city of St. Louis, being then and there an officer, to wit: treasurer of and for the Sub
“ £$1,525. St. Louis, Mo., April 17, 1893.
‘“Ninety days after date the Suburban Realty Company promises to pay to the order of L. W. Stebbins, treasurer, fifteen hundred and twenty-five dollars. Value received, negotiable and payable without defalcation or discount, with interest from maturity at 8 per cent per annum.
“‘Suburban Realty Company.
“‘George T. Parker, Pres.’
“On the back of which said negotiable promissory note and evidence of debt was then indorsed in words and figures the following:
‘ * * * L. W. Stebbins, treasurer, George T. Parker, E. C. Thompson, L. W. Stebbins,' StebbinsThompson Realty Company, by L. W. Stebbins, treasurer,’ the said negotiable promissory note and evidence of debt having been executed by the said incorporated company, the employer of the said L. W. Stebbins, and being negotiable on delivery and not having been issued or delivered to the said L. W. Stebbins as a valid instrument, of the value of fifteen hundred and twenty-five dollars, the negotiable promissory note, evidence of debt, effects, and personal property of the said incorporated company, then and there fraudulently did embezzle and convert to his own use, without the assent of the said incorporated company, his employer, which said negotiable promissory note and evidence of debt had then and there come into the possession and care of him, the said Lovell W. Stebbins, by virtue of
The defense was and is based upon this proposition : That upon the face of the indictment and the corresponding proofs it appeared that the defendant was the treasurer of the corporation; that after the note was drawn and signed by the officers of the corporation and indorsed by the directors for its benefit to obtain the money, it was left in defendant’s hands as its treasurer; this being true it was still in the hands of the maker and had not been delivered, and consequently it had no value and, therefore, was not the subject of larceny, and any value it might subsequently acquire by negotiation to an innocent purchaser for value and without notice of defendant’s breach of confidence and duty could not relate back and render it of value or the subject of larceny at the time he embezzled it for negotiation; that the indictment attempts to charge an offense under section 3550, which applies to evidences of debt “negotiable by delivery only” and yet it charges on its face that it was payable “to order of Stebbins.”
This objection must be considered in the light of our statutes. This indictment is drawn under section 3550, Revised Statutes of Missouri, 1889, which reads: “Every embezzlement of any evidence of debt, negotiable by delivery only, and actually executed by the master or employer of such clerk, agent, officer, or servant, but not delivered or issued as a valid instrument, shall be deemed an offense within the meaning of the last preceding section, and punished accordingly.”
Section 3549 provides that: “If any agent, clerk, apprentice, servant, or collector of any private person, or of any copartnership, except persons so employed under the age of sixteen years, or if any officer, agent, clerk, servant, or collector of any incorporated com
That this indictment was intended to charge an offense under section 3550 is evident from the fact that it follows the language of that section, but it is obvious that it does not charge a violation of that section, nor will the evidence sustain a conviction under that section.
The legislature doubtless could have made it a crime for any clerk, agent, officer, or servant to convert any evidence of debt which by its terms was negotiable, and which had been executed by his master or employer but not delivered or issued as a valid instrument, but it did not. It only made it criminal embezzlement to convert such evidences of debts so prepared and not delivered or issued as were “negotiable by delivery only.” It is true the indictment charges in one clause this note was negotiable by delivery only, but this 'averment.is repugnant to the other allegation describing the note which it avers he converted and which is set out in Jiaec verba, which shows the note was payable “to the order of L. W. Stebbins” and not to bearer, nor does it aver an indorsement in blank by him as payee.
While this note was negotiable it was not negotiable “by delivery only” but by indorsement of the
By thus restricting the character of the paper which might be embezzled to evidences of debt “negotiable by delivery only,” the legislature evidently intended not to include paper negotiable only by indorsement, and as this is a criminal statute it can not be extended to include other evidences of debt, however strong the reason may appear why they could, also, have been included in the statute.
Neither can the indictment be held good under section 3549. The intention of the legislature must be ascertained from the words of the law, and when it defined what things should be the subject of embezzlement, it enumerated “money, goods, rights in action, or valuable security, or effects whatsoever belonging to any other person.” Now, this note so long as it remained in the hands of the defendant, the lawful custodian, not delivered or issued, represented no value whatever. It was not a chose in action. It represented no debt or obligation. It was no more than a blank paper. Carter v. McClintock, 29 Mo. 464; People v. Loomis, 4 Denio, 380. It had no value and was not the subject of embezzlement.
And that this was the mind of the general assembly is evinced by the next section, which was intended to make .certain negotiable paper the subject of embezzlement even though not delivered or issued, and the note described in the indictment does not fall in the class therein designated. The statute is highly beneficial and might be extended to include paper negotiable by indorsement, but until this is done a breach of trust,
