State v. Stebbins

• Decision Date: 04 February 1896
• Citation: 132 Mo. 332,33 S.W. 1147
• Parties: STATE v. STEBBINS.
• Court: Missouri Supreme Court

33 S.W. 1147

132 Mo. 332

STATE v. STEBBINS.

Supreme Court of Missouri, Division No. 2.

February 4, 1896.

EMBEZZLEMENT — WHAT CONSTITUTES — CONSTRUCTION OF STATUTE.

1. Under Rev. St. 1889, § 3550, providing for the punishment of any officer embezzling any evidence of debts belonging to his corporation "negotiable by delivery only," a conviction cannot be had for converting to his own use, before issuance by the corporation, a note of the corporation payable to his order.

2. Under Rev. St. 1889, § 3549, providing for the punishment of any officer of a corporation converting to his own use any "money, goods, rights in action, or valuable security or effects whatsoever," a conviction cannot be had for converting to his own use. before issuance by the corporation, a note of the corporation payable to the officer's order.

Appeal from circuit court, St. Charles county; E. M. Hughes, Judge.

Lovell W. Stebbins was convicted of embezzlement, and appeals. Reversed.

Thos. M. Knapp, for appellant. The Attorney General, Morton Jourdan, Wm. Zachritz, and C. O. Bishop, for the State.

GANTT, J.

The defendant was indicted at the July term, 1894, of the St. Louis criminal court for the embezzlement of a certain negotiable promissory note, payable to his order, executed by the Suburban Realty Company, a corporation of which he was treasurer, and others, but which had not yet been issued or delivered. He was duly arraigned, and was granted a change of venue to St. Charles county, where he was tried, convicted, and sentenced to the penitentiary. The indictment (omitting formal parts) is as follows: "That Lovell W. Stebbins, on the 19th day of July, 1893, in the city of St. Louis, being then and there an officer, to wit, treasurer, of and for the Suburban Realty Company, an incorporated company, created and existing under and by virtue of the laws of the state of Missouri, * * * a certain negotiable promissory note and evidence of debt, in words and figures as follows: `$1,525. St. Louis, Mo., April 17, 1893. Ninety days after date, the Suburban Realty Company promises to pay to the order of L. W. Stebbins, treasurer, fifteen hundred and twenty-five dollars. Value received, negotiable and payable without defalcation or discount, with interest from maturity at 8 per cent. per annum. Suburban Realty Company. George T. Parker, Pres.'; on the back of which said negotiable promissory note and evidence of debt was then indorsed in words and figures the following: `* * * L. W. Stebbins, Treasurer, George T. Parker, F. C. Thompson, L. W. Stebbins, Stebbins-Thompson Realty Company, by L. W. Stebbins, Treasurer'; the said negotiable promissory note and evidence of debt having been executed by the said incorporated company, the employer of the said L. W. Stebbins, and being negotiable on delivery, and not having been issued or delivered to the said L. W. Stebbins as a valid instrument, of the value of fifteen hundred and twenty-five dollars, the negotiable promissory note, evidence of debt, effects, and personal property of the said incorporated company, — then and there fraudulently did embezzle and convert to his own use, without the assent of the said incorporated company, his employer, which said negotiable promissory note and evidence of debt had then and there come into the possession and care of him, the said Lovell W. Stebbins, by virtue of his said employment as such officer, as aforesaid, of said incorporated company, contrary," etc.

The defense was and is based upon this proposition: That upon the face of the indictment and the corresponding proofs it appeared that the defendant was the treasurer of the corporation; that, after the note was drawn and signed by the officers of the corporation, and indorsed by the directors for its benefit, to obtain the money, it was left in defendant's hands, as its treasurer; this being true it was still in the hands of the maker, and had not been delivered, and...