155 Mo. 300 | Mo. | 1900
At the October term, 1898, of the circuit court of the city of St. Louis, an indictment was found against the defendant charging h‘im with the embezzlement of $289 from the William Barr Dry Goods Company, a business corporation.
The defendant was duly arraigned and entered his plea of not guilty.
The evidence disclosed these facts:
The defendant graduated in law at the University of Michigan, Ann Arbor. He was bom at West Bay City, Michigan, where his parents resided at the time of the commission of the alleged offense. After receiving his diploma at the law school he went to Chicago, where he remained four or five years, leaving there for Texas. The record does not state how long be remained in Texas, but after leaving there, he was engaged in selling the stock of a building and loan association of St. Louis. In May, 1897, he organized the “Surety Law and Collection Company,” and had his office in the Allen building, at Eifth and Market streets, St. Louis. Defendant was never admitted to practice law in this State. The Surety Law and Collection Company was not a corporation. Its membership consisted of Charles W. Gottschalk and the defendant In August, 1897, Mr. Wyatt purchased the interest of Mr. Gottschalk, who at that time retired. Wyatt remained with the firm but a short time when he also retired therefrom. During the fall and summer of 1897, the William Barr Dry Goods Co. placed in the hands of the defendant for collection a number of claims against divers citizens of St. Louis. In addition to the claims , of the Wm. Barr Dry Goods Co., the defendant obtained for collection six or eight thousand dollars worth of claims of like character from different firms in St. Louis against persons residing in that city. Among those- re
There was an oral contract between the ¥m. Barr Dry Goods Co. 'and the defendant, by which he was to receive ten per cent of all amounts collected. In the early part of 1898, the dry goods company sent out statements to the several parties whose accounts they had placed in the hands of the defendant for collection. Erom these statements it developed that the defendant had collected certain amounts due on the claims and failed to report to the company or to turn the money in. This discovery having been made, the matter was placed in the hands of Judge Harvey, an attorney at St. Louis, who took the matter in hand, which resulted in the indictment in question and the defendant’s conviction thereon. The contract between the defendant and the "William Barr Dry Goods Co., as above referred to, was made by Mr. Charles Bauer, an employee of the company, who had special charge of its collection department. While on the stand, the defendant admitted that he had made the collection's in question and had not paid the same to his client, but undertook to show that he had an arrangement with Judge Harvey and the prosecuting witness, by which he was to be given time in which to make good the loss.
Immediately after this matter was placed in Judge Harvey’s hands, the defendant discontinued the collection business in St. Louis and went to Alton, Illinois, where he became the
The plea of not guilty was entered- Defendant was put upon trial and found guilty, his punishment being assessed at two years’ imprisonment in the penitentiary.
After the State had concluded the introduction of its testimony, the defendant’s attorney filed a demurrer to the evidence and asked the court to instruct the jury to return c verdict of not guilty. This instruction was refused.
The indictment is in all respecte sufficient to charge an offense under section 3549, Eevised Statutes 1889.
The instructions fully covered every feature of law arising under the evidence. Those asked by the defendant and refused had already been included 'in the court’s instructions.
There was no error in failing to instruct on the flight of defendant. The court did not tell the jury that- any presumption -of guilt was raised by defendant’s leaving the State, and no possible harm could arise to the defendant by failing to tell them that flight was evidence of guilt. The failure to give instructions on purely incidental and collateral matters arising in the trial is not error. [State v. Horn, 115 Mo. 416.]
There was no conflict in the instructions. Moreover they were exceedingly favorable to defendant, as were all the other rulings of the court.
The defendant was the agent and collector of the William Barr Dry Goods Company. His own voluntary statement showed that he owed the company two hundred and ninety-eight dollars of its money which he had collected for it from their custom-ers on accounts placed in his hands for that purpose. The evidence very conclusively showed that his former partners had no part in the collection of this money
It is also urged that the proof was not sufficient that defendant was over sixteen years. The defendant was a witness on .the stand and the jury were required to find as a fact that he was, over sixteen years old. Not only could they use their eyes in determining that fact,-but the defendant testified that he was a graduate of the University of Michigan, in the law department; that he was licensed to practice law in the courts of Illinois .and the Federal courts at Chicago; that he had been ■admitted to the bar in Texas and had represented various insurance companies in St. Louis for four or five years. There was ample evidence before the jury from which they could find he was over sixteen years old.
Considerable complaint is made that the circuit judge orally instructed the jury and that the court expressed opinions on the evidence before the jury. We have carefully read the record, on this point and it shows that the only foundation for this charge is that the court on several occasions stated what evidence was admissible and what was not and the grounds of his rulings. No exceptions were saved at the time to his action in so doing. It was entirely proper for him to do so and this moreover was not assigned as error in the motion for new trial.
As to the point that the demurrer to the evidence should have been sustained because the evidence showed the crime
