The State v. Meininger

• Citation: 268 S.W. 71,306 Mo. 675
• Decision Date: 15 January 1925
• Docket Number: 25647
• Parties: THE STATE v. ARTHUR O. MEININGER. Appellant
• Court: United States State Supreme Court of Missouri

268 S.W. 71

306 Mo. 675

THE STATE v. ARTHUR O. MEININGER. Appellant

No. 25647

Supreme Court of Missouri

January 15, 1925

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Reversed and remanded.

James Booth, Cole & Jenny, Harvey & Baer and Anderson Gilbert & Wolfort for appellant.

(1) A charge that defendant obtained the money is not sustained by proof that someone else got it. State v. McBrien, 265 Mo. 594, 611; State v. Bowman, 247 S.W. 145. The Constitution, art. 2, sec. 22, requires defendant to be informed of the nature and cause of the accusation. (2) A charge that United States money was embezzled is not sustained by showing that other property may have been. The statute prescribes what money means. Sec. 3904, R. S. 1919; State v. Fischer, 297 Mo. 164, 174; State v Castleton, 255 Mo. 201, 210; State v. Dodson, 72 Mo. 285; State v. Peck, 299 Mo. 454, 461. (3) Instructions which assume facts are erroneous. State v. Creed, 252 S.W. 678; State v. Fish, 195 S.W. 997; State v. Mills, 272 Mo. 526. (4) Instructions which comment on the evidence are erroneous. State v. Swarens, 294 Mo. 139; State v. Hogan, 242 S.W. 387; State v. Malloch, 269 Mo. 235; State v. Ferguson, 221 Mo. 524. (5) Conflicting instructions are erroneous. State v. Cable, 117 Mo. 386; State v. Harrell, 97 Mo. 110. (6) Testimony to impeach is not admissible where no foundation is laid while the witness is on the stand. State v. Curtner, 262 Mo. 214.

Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.

(1) The order overruling the plea in abatement is a finding that the allegations in support thereof are untrue. As it was a finding of fact upon conflicting testimony this court will not interfere with it. State v. Rowland and Sanders, 271 Mo. 88; State v. Sharp, 233 Mo. 269, 283; State v. Smith, 214 Mo. 245, 256. (2) The trial court properly overruled the motion to quash the indictment as it fully informs the defendant of the charge which he is to meet and is in approved form. State v. LaRew, 191 Mo. 192, 197; State v. Moreaux, 254 Mo. 398. (3) It was not necessary to prove that one who has illegally taken the funds of another person received any benefit from the transaction in a prosecution for embezzlement. State v. Crosswhite, 130 Mo. 358, 364; State v. Shour, 196 Mo. 202, 221; State v. Britt, 278 Mo. 510; State v. Pate, 268 Mo. 431; State v. Teasdale, 120 Mo.App. 692; State v. Coster, 170 Mo.App. 539; State v. Wilcox, 179 S.W. 481; Bishop's New Criminal Law, sec. 325, par. 2; State v. Ross, 55 Ore. 450, 227 U.S. 150; Russell v. State, 112 Ark. 282. (4) It was proper to make proof of embezzlement of money by introducing in evidence the defendant's check as cashier of the Night & Day Bank for $ 28,350 and the check of Katz for that amount to prove that that sum of money was taken from the bank without the bank's consent. This was not evidence of the embezzlement of the check, but of a misappropriation of funds of the bank. The checks introduced were merely the means by which the money was procured. State v. McCawley, 180 S.W. 871; State v. Martin, 230 Mo. 680. (5) As there was but one count of embezzlement in the indictment charging the conversion of a certain sum of money, it was proper to introduce evidence of appropriations of different amounts on different dates to make up the total charged in the indictment. An embezzlement may consist of a continuous series of conversions. State v. Julin, 292 Mo. 264. (6) The trial court did not err in overruling the motion of appellant to require the prosecution to elect upon which transaction mentioned in the evidence the prosecution would submit the case to the jury. State v. Julin, 292 Mo. 264. (7) The instruction limiting the purpose of evidence introduced by the State of other similar offenses committed by defendant to the ascertainment of the intent of the defendant was proper. State v. Wilson, 223 Mo. 156, 171. (8) An instruction which tells the jury that certain acts introduced in evidence on the question of intent tend to prove embezzlement, is not a comment on the evidence.

David E. Blair, J. White, J., concurs; Walker, J., absent.

OPINION

BLAIR

The indictment in this case was in two counts, one charging larceny and the other embezzlement of the moneys of the Night & Day Bank of St. Louis. The case was removed from the city of St. Louis to Franklin County upon change of venue. At the trial the State elected to stand upon the embezzlement count, and the defendant was found guilty thereunder and his punishment was assessed at imprisonment in the State Penitentiary for a term of five years. He was duly sentenced upon the verdict and has appealed.

The learned Attorney-General has made a very fair statement of the facts in the case and we quote same as follows:

"The evidence for the State shows that on the 7th day of January 1922, and for many years prior thereto, appellant was the cashier of the Night & Day Bank, a banking corporation of the city of St. Louis, Missouri; that as such cashier he had the custody and control of the funds of the bank, had full supervision of the books and of the employees of the bank; that all the employees received their training and instructions from him and followed to the letter the instructions which he gave to them; that the Night & Day Bank had originally a capital stock of $ 150,000, and at one time had a surplus of $ 95,000.

"Under appellant's instructions deposit slips were made out crediting persons or corporations with cash deposits in many instances when no cash had been deposited. These were held by tellers as 'cash items.' In many instances credit was given to persons or corporations through the use of these 'cash items' when such persons or corporations had not actually deposited any money in the bank and had given no evidence of indebtedness or securities, and the only papers which the bank had to show the transactions were these 'cash items' slips. The persons and corporations who obtained cash and credit in this way were either close personal or business friends of the appellant, or were corporations in which he was financially interested. The Southern Motor Company which obtained credits or cash in excess of $ 30 at different times was owned entirely by the appellant except for two or three shares of its stock.

"At one time immediately preceding an examination of the Night & Day Bank by the State Banking Department appellant instructed the employees of the bank so to arrange the books as not to show a deposit of $ 200,000 by the Treasurer of Missouri. This actual deposit of $ 200,000 by the Treasurer of Missouri was used to cover the 'cash items' then being carried so as to show instead of cash item slips of paper the actual cash.

"The Night & Day Bank was closed on the 5th day of January, 1922, by order of the State Banking Department, and the Commissioner of Finance took charge of it for the purpose of liquidation. At that time there should have been $ 869,000 actual cash on hand. There was, however, only $ 104,000 there. The day before the Finance Commissioner took charge of the bank appellant could not be found at the bank, at his room at the hotel where he stayed, or at his usual eating place. He left St. Louis and after the newspapers reported that he had been indicted he made arrangements with the circuit attorney from Belleville, Illinois, to surrender himself and to answer to the indictments.

"The bank tellers explained that the cash items slips were memoranda made by them under instructions from the appellant and held by them in lieu of cash and counted as cash. From time to time during the year of 1921 cash item slips were made up by the tellers aggregating a total of $ 174,677.11. On December 19, 1921, the head teller was instructed to charge off these various cash items to 'general items.' On the morning of that day, counting the cash items as cash, the books showed $ 213,230.18 as cash. When the charge-off was made the actual cash on hands was $ 38,553.06. A part of the $ 174,677.12 was drafts or checks which had been returned to the bank from some other bank, because of insufficient funds, and held as cash items by the Night & Day Bank under the instructions of appellant.

"Cash item slips were introduced in evidence aggregating $ 116,450, which money was shown to have been paid to one Meyer Katz. Other items in excess of $ 30 were shown to have been paid to the Southern Motor Company, which was principally owned by the appellant. Some of these cash item slips were overdrafts of the Southern Motor Company and they were held as cash under the appellant's instructions. Two of the overdrafts were introduced in evidence. One was for $ 830.83 and the other for $ 375. One cash item slip credited to the Briscoe Motor Sales Company was $ 1,800, another credited to the Briscoe Liberty Motors was $ 2,000; one for the Southern Motor Company was $ 3,258.83, another credited to the Southern Motor Company was $ 1,764.85; one for P. A. McDermott for $ 5,659.33.

"Seven drafts drawn on the Night & Day Bank by appellant as cashier on other banks, in various sums up to $ 100,000, were found in appellant's safety deposit box. They had not been used.

"Appellant's evidence was as follows: Meyer Katz testified that he never gave appellant anything for making loans to him and that he never promised appellant anything. He was in the river equipment business, had invested a great deal of money in barges and river craft; that he had a contract to haul oil on a river in Mexico; that he obtained a great deal of money from the Night & Day Bank to finance his venture; that he left with appellant notes and an oil contract as collateral security; that he had insurance on two boats in the sum of $ 104,000;...