To the original information filed in this cause, defendant filed at the same time a general demurrer and a motion to quash. Pending these motions, the following amended information was filed:
“State of Missouri, Plaintiff, v. Everett P. Teasdale, Defendant, charged with fraud by commission merchant.
“Nelson Thomas, assistant prosecuting attorney, of the St. Louis Court of Criminal Correction, now here in court, on behalf of the State of Missouri, amended information makes as follows:
“That Everett P. Teasdale, in the city of St. Louis, on the fourth day or March, 1905, being then and there*694 a commission merchant and. president, agent and general manager of the Miller & Teasdale Commission Company, a corporation, storing and shipping goods, wares and merchandise, and selling on commission such goods and property, for a percentage on the sales thereof, and that the said Everett P. Teasdale as president of the said corporation, did then and there receive of and from one Albert Fogg a certain quantity of cranberries, to-wit, six hundred cases, the property of said Albert Fogg of the value of one thousand dollars; said cranberries having been consigned to said Miller & Teasdale Commission Company, a corporation, to be sold by said corporation on commission for the account of Albert Fogg; and the said Everett P. Teasdale, as president of said corporation, on or about the 4th day of March, 1905, did sell two hundred and fifty crates of said cranberries and did receive therefor, the sum of $409.10 and on said day said Everett P. Teasdale, as such president of said corporation did convert to his own use, without the consent of the said Albert Fogg, the owner thereof, the said sum of $409.10, the sum received by him as such president, for the said two hundred and fifty crates of cranberries, property of Albert Fogg, and did unlawfully fail to pay over the avails and proceeds of said sale of cranberries, so as aforesaid sold by him, on demand of said Albert Fogg, the party entitled thereto, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.
“Nelson Thomas,
“Ass’t Pros. Attorney of the St.
Louis Court of Criminal Correction.”
The information was properly verified.
The demurrer and motion to quash the first information were refiled to apply to the amended one. Both were overruled by the court. The statute upon which the information is based reads as follows:
*695 “If any warehouseman, storage, forwarding or commission merchant, or any other person selling on commission or for a percentage on sales made by him, or any person receiving goods on condition that he is to pay a certain price or value to the owner or shipper when such goods are sold, or if the agent, clerk or servant of any such person shall convert to his own use any produce, cattle, hogs, cotton, flour or other property of any description whatsoever, or the proceeds or avails thereof, without the consent of the owner thereof, or shall fail to pay over the proceeds or avails thereof, less his proper charges, on the demand of the person entitled thereto, or his duly authorized agent, he shall be adjudged guilty of a misdemeanor, and shall, on conviction, be punished by a fine not exceeding one thousand dollars nor less than one hundred doliars, or confined in the county jail or work house not longer than one year nor less than sixty days, or shall be punished by both such fine and imprisonment, and shall be liable to the person injured in double the value of the property or money so converted.” [Sec. 1943, R. S. 1899.]
The amended information follows the language of the statute, is sufficiently definite and specific to notify the defendant of the offense of which he stands charged, and therefore fills the requirements of the law. The issues made by the information and defendant’s plea of “not guilty” thereto Avere submitted to the court, sitting as a jury, who, after hearing all the evidence, found defendant guilty and assessed his punishment at a fine of one thousand dollars. Defendant appealed.
No declarations of law were asked or given, therefore, the only questions presented for our consideration, is whether or not there is sufficient evidence in the record to warrant the court’s verdict of guilty, and to pass on certain objections interposed at the trial, to the admission of some of the evidence. The specific charges in the amended information is that defendant, as president and agent of the Miller & Teasdale Commission Co.,
“July 8, 1905.
“Mr. Albert Fogg,
“Philadelphia, Penn.
“Dear Sir: We appreciate the fact that you are very anxious to have report on the car of cranberries. We are not able to make you report on the car at present. You appreciate the difficulties that we have been having in disposing of cranberries at the late date you shipped them. We were forced to reconsign out to other points a great many of these goods with the hope of realizing on them, and, we have been using every effort for some time to get reports so that we could give you an accounting, but we have not been able to do so. You must pardon the delay, not that it is neglect or inattention on our part, we assure you, we only regret the conditions are such that we could not act more promptly. You have been in such a position yourself frequently no doubt. You realize fully, we believe the fact, that when you made this shipment it was almost impossible to dispose of berries. We are not alone in these difficulties. We find that others have had even more trouble then ourselves. Owing to the failure on the part of other parties to report to us we are unable to report to you.
“With this explanation and assuring you that we, will send you account as promptly as possible, we are,
“Very truly yours,
“Miller-Teasdale Commission Co.
“P. S. You must pardon our seeming neglect, but have been hoping, to give you definite report before this, but could not do so. M. '& T. Com. Co.”
At later dates Fogg wrote the Miller & Teasdale Co., several letters asking for a report on the sale of the berries.
The evidence tends to show that the remittances from Crossland & Co., to the Miller & Teasdale Co., were
Defendant testified that the corporation was incorporated August 7, 1902, with three stockholders and directors, G. P. Miller, J. W. Milby and himself; that a present of two shares of the capital stock of the company was made to Milby (one by Miller and one by himself) to enable Milby to hold an office in the corporation, and he (Milby) was elected secretary and treasurer and continued to hold both offices as long as the corporation did business; that Miller resigned as'president of the company in 6 or 7 weeks after its incorporation and left St. Louis to reside in the East, and did not thereafter participate in the business of the corporation, which was that of handling merchandise on commission. The books of the company were not kept after September, 1903. Defendant testified that it was Milby’s business to keep the books and he supposed he had done so, and did not learn to the contrary until the corporation was put in bankruptcy; that he took Milby’s word for everything in regard to the books and the state of the company’s accounts. The books were kept in a safe in the office, to which defendant had free access. On cross-examination of defendant, over objection of his counsel, it is shown that on September 2, 1902, ten thousand dollars
The Miller & Teasdale Co., had a stenographer and several employees, all of whom, it seems from the evidence, were in the habit of writing or dictating letters to the company’s customers. The defendant was the executive head of the corporation, which, according to the evidence, was a corporation in name only. Defendant and Milby were its sole managers and had entire control of its business, and it is clearly shown from the evidence, that defendant knew that Crossland '& Co., had remitted for two, hundred and fifty cases of cranberries consigned to them for sale, and that this amount less commission was due Fogg, and that he had repeatedly asked for a statement yet no statement was ever given nor a dollar of the money paid. The facts show a conversion of the money, and a conversion for which Teasdale, as the chief executive offcer of the company, is both civilly and
A carbon copy of the letter received by Fogg on July 8, 1905, which was objected to by defendant, on the ground the original was the best evidence, was offered in evidence. Fogg testified he received the original letter and that it was in his office at his home (Philadelphia). The court overruled the objection and admitted the carbon copy, to which ruling defendant saved an exception at the time, and called the court’s attention to the error in his motion for a new trial. No effort was made to produce the original letter at the trial and as it was shown to be in the office of the prosecuting witness (Fogg), on this showing the copy was not admissible in evidence. [State v. Lentz, 184 Mo. 223; Traber v. Hicks, 131 Mo. 181.] This letter is a very important part of the evidence as it conceals from Fogg the fact that two hundred and fifty crates of the cranberries had been sold and the proceeds paid over to the Miller & Teasdale Co., before the letter was written, and tends to prove a preconceived design on the part of Teasdale or of Teasdale and Milby to convert the proceeds. For this error the judgment must be reversed. We think also, too great latitude was allowed the State in the cross-examination of defendant. It was improper to draw from him, on on cross-examination, the fact that he had indorsed checks of the corporation, amounting to ten thousand dollars, on September 2, 1902, for the benefit of Miller, as this matter was not gone into in the direct examination. His cross-examination as the statute requires, should have been confined to such matters as were brought out in his examination in chief.
The judgment is reversed and the cause remanded.