The State v. Thompson

• Decision Date: 31 May 1898
• Citation: 46 S.W. 191,144 Mo. 314
• Parties: The State v. Thompson, Appellant
• Court: Missouri Supreme Court

46 S.W. 191

144 Mo. 314

The State v. Thompson, Appellant

Supreme Court of Missouri, Second Division

May 31, 1898

Appeal from Hannibal Court of Common Pleas. -- Hon. Reuben F. Roy Judge.

Affirmed.

D. H Eby for appellant.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The indictment given and the verdict as found by the jury showed the defendant to be convicted of embezzlement and not larceny of the money; there being absolutely no evidence in support of a finding for larceny. The question then arises will an indictment of this character support such a finding, and were instructions on the question of embezzlement warranted? If we are to follow the provisions of section 3947, Revised Statutes 1889, the right to do so can not be questioned. Defendant in his motion in arrest of judgment questions the constitutionality of this section on the ground that to convict the defendant of embezzlement under an indictment charging larceny, is to convict him without having fully informed him as to the nature and cause of the accusation against him, which he is entitled to know by virtue of article II, of section 22, of our bill of rights. This section had been passed upon and its constitutionality upheld in the following cases: State v. Porter, 26 Mo. 201; State v. Broderick, 70 Mo. 622; State v Owen, 78 Mo. 374; State v. Broderick, 7 Mo.App. 19. (2) It is submitted that the crime of embezzlement embraces all the elements of larceny, except the actual taking of the property embezzled, that being already in the possession of the embezzler. 6 Am. and Eng. Ency. of Law, sec. 456; State v. Baldwin, 7 Iowa, 180; State v. Braunbager, 28 Minn. 226; Roscoe's Crim. Ev., sec. 453; State v. Tracy, 73 Md. 447; State v. Witworth, 11 Tex.App. 414.

Burgess, J. Sherwood, J., concurs; Gantt, P. J., dissents.

OPINION

Burgess, J.

The defendant was convicted in the Hannibal Court of Common Pleas of embezzlement, and his punishment fixed at three years' imprisonment in the penitentiary, under a count in an indictment charging him with grand larceny. He appealed.

There were two counts in the indictment. The first was for grand larceny and the second for embezzlement. The second count was dismissed. The first count, under which the conviction was had, charged that defendant, on the seventeenth day of September, 1895, in Mason township in the county of Marion and State of Missouri, did then and there $ 300 in lawful money of the United States, of the value of $ 300, of the personal property of one Fletcher Buckner then and there being unlawfully steal, take and carry away against the peace and dignity of the State.

At the time of the commission of the alleged offense defendant lived at Hannibal, Missouri, and was engaged in the insurance business, representing among other companies the New York Life. One Gabe Buckner had taken out a policy of life insurance in said company in favor of his wife, Fletcher Buckner, for $ 1,000. Gabe Buckner died, and the defendant represented the company in the settlement with Mrs. Buckner for the insurance. On the fifteenth day of September, 1895, defendant received from said company a draft in settlement of said insurance for the sum of $ 995.50, which was payable to her. This draft she indorsed, and at her request defendant went to the German-American Bank in Hannibal, and received the money on it from U. G. Osborne, the cashier. After defendant received the money he drove out in a buggy to Mrs. Buckner's place of residence and called to her saying, "I have come to pay that claim." She then went out to the buggy, and defendant took the package out of his pocket, opening it sufficiently for her to see that there was money in it and handed it to her, remarking at the time, "I bet this is more money than you ever had in your life before." He then asked her what she was going to do with it; and she told him she was going to put it in the bank. Mrs. Buckner was an illiterate woman and unable to count the money, and on her way to the German-American Bank to deposit it, she met an acquaintance by the name of Michiltree, and asked him to count it for her, which he did, and found there were only $ 700 in the package. She did not know up to this time how much money was coming to her upon the policy, but upon going to the bank and handing the money to the cashier, Osborne, who counted it, and finding only $ 700 in the package informed her that there ought to be $ 1,000, and asked her if she had not taken some out of the package. She had not done so. Osborne, the cashier, testified that when he paid the money to the defendant on the draft he gave him $ 1,000 including two bills of $ 100 each. About noon on the same day that defendant paid the money to Mrs. Buckner, he boarded a train for St. Louis, but was arrested on the way at Troy, Missouri, on a telegram. Upon being searched it was found that he had two $ 100 bills and about $ 80 in smaller denominations upon his person. Defendant denied having taken the money from the package. He stated that while in his room in the morning before he took the money to Mrs. Buckner, he took the two $ 100 bills out of the package and placed in their stead $ 200 in bills of smaller denominations. The court of its own motion gave the following instruction to the jury, over the objection of defendant:

"2. If the jury find from the evidence in the cause beyond a reasonable doubt that at any time within three years prior to the 24th day of September, 1895, in Mason township, in Marion county, Missouri, the defendant delivered to Fletcher Buckner a draft for money payable to said Buckner, and that said Buckner indorsed said draft and delivered it to defendant for collection for said Buckner, and that the defendant collected said draft and received the amount of the same on said draft from the German-American Bank; and if the jury further find that the defendant willfully converted any portion of the money so received by him on said draft to his, the defendant's, own use, and that said money, so converted to his own use, was the lawful money of the United States, and was of the value of more than $ 30, and was the property of said Buckner, and that said money was so converted to the defendant's own use, with the intent, on defendant's part, to permanently deprive said Buckner of her said property without said Buckner's consent and without any honest claim or belief on defendant's part that he was lawfully entitled to said money but for the purpose of dishonest gain, then the jury will find the defendant guilty of embezzlement of property of the value of more than $ 30 under the first count of the indictment and assess his punishment at imprisonment in the penitentiary for a period of not less than two years and not more than five years."

The defendant is not represented in this court, but in the motion for a new trial filed by counsel who appeared for him in the trial court, the point was made, among others, that the court committed error in giving this instruction. The other points we think unworthy of consideration. The only question then is whether under section 3947, Revised Statutes 1889, a person can be indicted for grand larceny, and convicted of embezzlement under the same indictment, by reason of the provisions of that section, which provides that upon an indictment for larceny the defendant may be convicted of embezzlement, and vice versa. The correctness of this instruction depends upon the proper solution of this question.

At common law embezzlement was merely a breach of trust, and not an indictable offense, in which respect it differs from larceny. While embezzlement embraces in a large measure the characteristics of theft, it is under our statute a separate and distinct offense. Theft involves the idea of unlawful taking, a trespass, whereas embezzlement is the fraudulent conversion of personal property already in the lawful possession of the person who wrongfully and feloniously appropriates it to his own use. They are therefore similar in character, embezzlement being a minor grade or degree of larceny. In order to a conviction in the latter case, it must be shown that there existed a felonious intent to steal at the time of the taking of the property, while in the former the possession is lawful, and the intent to feloniously appropriate it is formed after it comes into the possession of the person by whom it is wrongfully appropriated. Under...