State v. Kirby

• Decision Date: 02 May 1893
• Citation: 22 S.W. 453,115 Mo. 440
• Parties: The State, Appellant, v. Kirby et al
• Court: Missouri Supreme Court

22 S.W. 453

115 Mo. 440

The State, Appellant, v. Kirby et al

Supreme Court of Missouri, Second Division

May 2, 1893

Appeal from Buchanan Criminal Court. -- Hon. Silas Woodson, Judge.

Affirmed.

R. F Walker, Attorney General, A. D. Burnes, Prosecuting Attorney and Jas. W. Coburn, for the state.

(1) The indictment does charge a crime against the state. Revised Statutes, 1889, secs. 742, 746, 747. (2) The statute does not require, as an ingredient of the offense, that the wheat should have been stored for hire. The indictment need only follow the words of the statute. (See innumerable decisions on this point.) A bailee may be indicted for conversion though the bailment was gratuitous. 2 Bishop on Criminal Law [7 Ed.] sec. 834, p. 472; State v. Fairclough, 29 Conn. 47. (3) The indictment by intendment, and in its context, fairly charges the defendants to be warehousemen, if that allegation were requisite; but it is not requisite, since the statute is leveled not only against warehousemen, but also against "other persons" who shall receive grain for storage, giving a written receipt therefor, and shall sell, remove or dispose of the same. Revised Statutes, 1889, sec. 742. The words "other persons" are ejusdem generis with the word warehousemen, which they follow. Saint Louis v. Herthel, 88 Mo. 128; Saint Louis v. Bowler, 94 Mo. 630; Saint Louis v. Bell Telephone Co., 96 Mo. 623; City of Kansas v. Hindequest, 36 Mo.App. 584. The statute is intended to include all persons, whether warehousemen or not, who engage in receiving grain for storage, etc., giving written receipts therefor. (4) It was not necessary to charge that the wheat was removed, sold or disposed of with intent to cheat or defraud Frank Drais or any other person. Revised Statutes, 1889, sec. 3983; State v. McCollum, 44 Mo. 345; State v. Hackfath, 20 Mo.App. 614; 1 Bishop on Criminal Procedure [3 Ed.] sec. 521, p. 328; 1 Bishop on Criminal Procedure [3 Ed.] sec. 523, p. 330. The sale, removal and disposition of the wheat was, in the indictment, alleged to have been done "unlawfully and feloniously." State v. Morgan, 20 S.W. 456. The term "feloniously" points to the intent which enters into a felony.. 1 Bishop on Criminal Law [7 Ed.] sec. 426, p. 271.

Casteel & Haines for respondents.

(1) The indictment fails to charge a crime against the laws of the state. Revised Statutes of Missouri, 1889, secs. 739, 742, 744; Union Savings Ass'n v. St. Louis Grain Elevator Co., 81 Mo. 341. (2) The indictment does not charge that the defendants received the grain charged to have been stored for hire. See definition of warehouseman, 2 Rapalje & Lawrence's Law Dictionary, p. 1344. (3) The indictment does not charge that defendants were warehousemen or wharfingers. Revised Statutes, sec. 744. (4) The indictment fails to charge that the grain was removed or sold with the intent to defraud the said Frank Drais.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

This is an appeal by the state from the judgment of the criminal court of Buchanan county, quashing the following indictment:

"State of Missouri, "County of Platte.] ss. In the Circuit Court, August Term, 1891.

The grand jurors for the state of Missouri, summoned from the body of Platte county, impaneled, charged and sworn, upon their oaths present that on the twenty-third day of December, 1890, at the said county of Platte, state aforesaid, George W. Kirby was president, and Perry W. Noland was secretary of the Dearborn Milling Company, a corporation existing under and by virtue of the laws of the state of Missouri, and doing business at Dearborn in said Platte county, Missouri, in the receiving, storing and shipping of wheat and other grain, and the said George W. Kirby and Perry Noland were the agents, servants and managers thereof; that on said twenty-third day of December, 1890, one Frank Drais delivered to said corporation in its warehouse in Dearborn, in said Platte county, two hundred and ninety-eight and eighteen-sixtieths bushels of wheat, the property of the said Frank Drais, and worth $ 268.70, for the purpose of storing the same in the warehouse of said corporation, and which said wheat was actually received into the said warehouse of said corporation, and for which said wheat said corporation gave a written receipt to the said Frank Drais; and that thereafter, on the third day of April, at the said county of Platte, state aforesaid, the said George W. Kirby, the president, and the said Perry W. Noland, the secretary of said corporation, did then and there unlawfully and feloniously ship, transfer, remove and sell said wheat, the property of said Frank Drais, for which a written receipt had been given him by said corporation, without the written assent of the said Frank Drais, and without paying him therefor, and against the peace and dignity of the state.

"And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the Dearborn Milling Company is and was a corporation existing under the laws of the state of Missouri, doing business at Dearborn, Platte county, Missouri, on the dates hereinafter mentioned, in the receiving, storing and shipping of wheat and other grain; that George W. Kirby was the president thereof and Perry W. Noland was the secretary thereof, and as agents and servants of said corporation were managing and conducting the business thereof; that on the twenty-third day of December, 1890, one Frank Drais delivered to said Dearborn Milling Company, in its elevator and store-room in Dearborn, in said Platte county, two hundred and ninety-eight and eighteen sixtieths bushels of wheat, the property of the said Frank Drais, worth $ 268.70, for the purpose of storing the same in the said elevator and storeroom of said corporation, and which said wheat was actually received into the said elevator and storeroom of said corporation, and for which said wheat said corporation gave a written storage receipt to the said Frank Drais; and that thereafter, on the third of April, 1891, at the said county of Platte, state aforesaid, the said George W. Kirby and the said Perry W. Noland, the agents, servants and managers of said corporation, the Dearborn Milling Company, did then and there unlawfully and feloniously ship, transfer, remove and sell said wheat, the property of the said Frank Drais, and without paying him therefor, against the peace and dignity of the state.

"A. D. Burnes, Prosecuting Attorney.

"A true bill.

"John McAdow, foreman of the grand jury."

A change of venue was awarded to the criminal court of Buchanan county. At the March term, 1892, the defendants filed in said criminal court the following motion to quash:

"Come now the defendants in the above entitled cause and move the court to quash the indictment herein, for the reasons to-wit:

"1. That the indictment fails to charge a crime against the laws of the state.

"2. The indictment does not charge that the defendants received the grain charged to have been stored for hire.

"3. That the indictment does not charge that defendants were warehousemen or wharfingers.

"4. That the indictment fails to charge that the grain was...