The State v. Jennings

• Decision Date: 01 April 1889
• Citation: 11 S.W. 980,98 Mo. 493
• Parties: The State v. Jennings, Appellant
• Court: Missouri Supreme Court

11 S.W. 980

98 Mo. 493

The State v. Jennings, Appellant

Supreme Court of Missouri

April 1, 1889

Appeal from St. Louis Criminal Court. -- Hon. G. S. Van Waggoner Judge.

Affirmed.

Joseph G. Lodge for appellant.

(1) Where a person is charged with one crime, he cannot be proved guilty by evidence tending to prove that he is guilty of another though a similar crime. Cases cited in brief in State v. Pratt, ante, p. 482. (2) The court erred in refusing defendant's seventh instruction. (3) The court erred in overruling the motion to quash the order for a special venire made at the request of the state.

John M Wood, Attorney General, and Thomas B. Harvey for the State.

(1) The instructions given by the court correctly declare the law. State v. Pratt, ante, p. 482. (2) The seventh instruction asked by the defendant was properly refused. Time is not an essence of the crime of embezzlement. 1 Bish. Crim Proc., secs. 386, 397, 399, 400. (3) The statutory method of summoning, drawing and impaneling juries is directory, and the action of the trial court in overruling defendant's motion to quash the order for a special venire, and the venire, does not constitute grounds for reversal. State v. Matthews, 88 Mo. 121; State v. Gleason, 88 Mo. 582; State v. McKnight, 61 Mo. 374; State v. Pitts, 68 Mo. 556.

Sherwood, J. Barclay, J., concurs in the result.

OPINION

Sherwood, J.

The defendant in this case was indicted for embezzlement, the indictment containing nine counts. The court refused to compel the state to elect on which count it would proceed, and at the close of the testimony, a nolle was entered as to all the counts but the last, on which the defendant was found guilty and his punishment assessed at fours years in the penitentiary. The evidence to support the verdict of guilty was ample, and the transaction extended through a considerable period of time, and the precise dates at which any particular embezzlement occurred, as is usual in all such cases, could not with any degree of certainty be ascertained. The defendant has appealed here and assigned several errors as grounds for reversing the judgment of the lower court.

I. In regard to the instructions given on behalf of the state, the same line of remark is applicable to the first and third as in the case of State v. Pratt, ante, p. 482. In the statement prepared by counsel for defendant, the first and third instructions aforesaid are the only ones given, whereas there were seven given in all, which placed the matters at issue very fairly before the jury, and the second instruction was as follows:

"The jury are instructed that the mere conversion of money to the agent's use after receiving same, and a failure to pay it over, does not constitute the crime of embezzlement charged in the indictment, but there must be in the mind of the agent at the time of such conversion a felonious intent to appropriate it to the agent's use and to deprive the owner of it. And the jury must be satisfied by the evidence, beyond a reasonable doubt, of the existence of such felonious intent at the time of the conversion, or they must acquit the prisoner."

If there had been any necessity of expressing the meaning of the court as to the words, "of the use thereof absolutely," the omitted instruction would have furnished such explanation by showing they meant to deprive the owner of the money embezzled. Besides that instruction contained a clause respecting reasonable doubt, one always essential in criminal cases; and the instruction also declared the necessity for establishing a felonious intent, etc., and yet counsel for defendant complain just as if no instruction were given as to reasonable doubt or as to felonious intent. But for an examination of the record we would have been led to suspect that the trial court had omitted any instructions on the points mentioned. This course of statement and argument was not dealing fairly with the court. As to the other instructions given by the court of its own motion, or asked on behalf of defendant and refused, no more need be said than to refer to the opinion in State v. Pratt, supra.

II. There is, however, one exception to the foregoing remark, the seventh instruction asked by defendant differs materially from those asked in Pratt's case; it was the following:

"The court instructs the jury that under the last count in the indictment it is charged that the prisoner,...