State v. Gillum

• Decision Date: 01 December 1934
• Citation: 77 S.W.2d 110,336 Mo. 69
• Parties: The State v. W. W. Gillum, Appellant
• Court: Missouri Supreme Court

77 S.W.2d 110

336 Mo. 69

The State v. W. W. Gillum, Appellant

Supreme Court of Missouri

December 1, 1934

Appeal from Cooper Circuit Court; Hon. Nike G. Sevier Judge.

Reversed and remanded.

Roy D. Williams, A. B. Hoy and A. J. Bolinger for appellant.

(1) The demurrer to the evidence should have been given. State v Woodson, 162 S.W. 328; State v. Hurley, 234 S.W. 823. (a) The charge of embezzlement is a matter of intent. State v. Spire, 65 S.W.2d 1057; State v Woodson, 162 S.W. 328. (2) The court erred in overruling the defendant's motion to require the State to elect upon which offense it would rely for conviction, and, in not thereafter, in its instruction, confining the State to any one particular alleged offense. State v. McKinney, 254 Mo. 689. (3) Instruction 7 is erroneous in that it allows the intent to be gathered from circumstantial evidence, but no instruction on circumstantial evidence was given. State v. Maggard, 157 S.W. 354, 250 Mo. 335. (4) Instruction 8 allowed the jury to infer one of the material elements of the crime. State v. Swarens, 241 S.W. 934, 294 Mo. 139; State v. Shields, 246 S.W. 932, 296 Mo. 389. (a) This instruction shifted the burden upon the defendant. This was error. State v. Swarens, 241 S.W. 929, 294 Mo. 139. (b) This instruction did not require the jury to find that the money was "feloniously" or "fraudulently" converted. State v. Pate, 268 Mo. 431, 188 S.W. 139; State v. Cunningham, 154 Mo. 179; State v. Hurley, 234 S.W. 820; State v. Reilly, 4 Mo.App. 932; Gordon v. Eams, 97 Mo. 607; State v. Harris, 108 S.W. 28, 209 Mo. 423. (5) Instruction D as requested by the defendant should have been given. It went to the good faith of the defendant and he had a right to have his defense submitted to the jury. State v. Reilly, 4 Mo. 392. (6) It was a reversible error for the jury to separate, or to converse with outsiders. State v. Malone, 62 S.W.2d 913; State v. Shawley, 67 S.W.2d 88. (7) Argument by special counsel of the State was prejudicial and entirely outside of the record. This is a reversible error. State v. Ferguson, 152 Mo. 100; Haynes v. Trenton, 108 Mo. 133; State v. Shipley, 174 Mo. 516; State v. Davis, 217 S.W. 91. (8) The court failed to instruct the jury on all the law of the case. This was in error. State v. Silvey, 296 S.W. 130; State v. Crawford, 289 S.W. 962; State v. Baird, 231 S.W. 625; State v. Bennett, 248 S.W. 924; State v. Miller, 237 S.W. 498; State v. Kelb, 48 Mo. 269; State v. Taylor, 118 Mo. 180.

Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, for respondent.

(1) The information in this case is sufficient and in the approved form. State v. Larew, 191 Mo. 194; State v. Moreaux, 254 Mo. 402, 162 S.W. 158. (2) Demurrer offered at the close of the State's case was properly overruled and is waived by defendant when defendant offers his own evidence. State v. Starling, 207 S.W. 767; State v. Hembree, 295 Mo. 9; State v. Martin, 230 Mo. 700; State v. Jackson, 283 Mo. 18, 222 S.W. 746; State v. Mann, 217 S.W. 69; State v. Gow, 235 Mo. 329. (3) The court did not err in overruling defendant's motion to require State to elect on which particular item of embezzlement it relied upon for conviction. Sec. 4079, R. S. 1929; State v. Pratt, 98 Mo. 490; State v. Wise, 186 Mo. 42; State v. Wissing, 187 Mo. 96; State v. Julin, 235 S.W. 820, 292 Mo. 264. (4) The court did not err in giving Instruction 7 on the question of intent. State v. Wissing, 187 Mo. 103; State v. Moreaux, 254 Mo. 413. (5) Instruction 8 as given by the court was proper in this kind of a case and was in the approved form. State v. Noland, 111 Mo. 496. (6) The court properly refused to discharge the trial jury on account of alleged separation of the jury and misconduct of the jury. State v. Malone, 62 S.W.2d 909; State v. Shawley, 67 S.W.2d 88; Sec. 3734, R. S. 1929. (7) Alleged misconduct of special counsel in argument to jury not reversible error. State v. Frost, 289 S.W. 898; State v. White, 253 S.W. 728; State v. Cooper, 271 S.W. 475; State v. Phillips, 233 Mo. 307; State v. Ruck, 194 Mo. 440; State v. Ferrell, 246 Mo. 337. (8) The court instructed the jury on all the law applicable to the case. Secs. 3681, 3735, R. S. 1929; State v. Burrell, 252 S.W. 711; State v. Hadlock, 289 S.W. 947.

OPINION

Tipton, J.

By an indictment returned by the grand jury of Morgan County, Missouri, the appellant was charged with embezzlement from the Bank of Barnett. On change of venue the case was sent to Cooper County, Missouri, where appellant was found guilty and sentenced to two years in the penitentiary. He has duly appealed to this court.

The appellant became president of the Bank of Barnett, Missouri, when it was established about twenty-eight years ago, and held that position as long as the bank continued to function. Following the World War the bank was prosperous until the sudden decline in value of live stock. Many of the borrowers of the bank were unable to pay their loans and a large part of its assets became "frozen." On November 1, 1931, the bank was placed in the hands of the Finance Commissioner.

The principal contention of the State was that $ 1500 was embezzled from Daisy Weaver's account. Appellant claimed the loan was made to him personally while Miss Weaver claimed she made the loan to the bank. After the failure of the bank appellant called a meeting of his personal creditors at his home where Miss Weaver acted as secretary. A petition in bankruptcy was filed against appellant and his wife. Miss Weaver filed a claim for $ 1500 in the bankruptcy estate. Other pertinent facts will be stated in the course of this opinion.

I. Appellant contends that it was a reversible error for the court to refuse his requested Instruction D, which is as follows:

"The court instructs the jury that if you find and believe from the evidence that the money charged in the indictment to have been embezzled by the defendant was money paid into the Bank of Barnett by witnesses H. K. Currence and Daisy Weaver for the purpose of having it loaned by said Bank and was received by said Bank for that purpose, and that afterwards the said witnesses agreed to loan said moneys to defendant, or that the defendant, in good faith, understood and believed that they had so agreed, even though he was mistaken in that belief, then the transfer of that money from the Bank's account to defendant's account does not constitute any evidence of an intent on the part of defendant to defraud said Bank, and you must acquit him."

In regard to the Weaver transaction the appellant testified, "I asked if I could have her money in the event I needed it and she said yes and I borrowed it." Other witnesses for the defense testified that Miss Weaver had lent the money to the appellant. Miss Weaver testified that she lent the money to the bank. There was also testimony to the effect that he borrowed money from H. K. Currence. The sole defense in the case was that the appellant borrowed the money for his personal use and therefore, the only issue was intent.

In the case of State v. Hurley, 234 S.W. 820, l. c. 823, we said:

"To constitute embezzlement there must be, as in larceny, a fraudulent intent to deprive the owner of his property, and appropriate the same. [20 C. J. 433.] . . .

"Unless the appellant withheld said stock with felonious and fraudulent intent to appropriate it to his own use, he is not guilty of embezzlement. [State v. Britt, 278 Mo. 510, 213 S.W. 425.] Embezzlement was not known to the common law; it is purely a statutory offense and as to such offense, it is said:

"'There must be evil intent, though the statute is silent on the subject.' [1 Bishop's Criminal Law (6 Ed.), sec. 345.] . . .

"Appellant's claim against witness Sutter did not have to be well founded in order to exculpate him from fraudulent intent, for it is the rule that -- 'If property is converted without concealment, and under a bona fide claim of right, the conversion is not embezzlement, however unfounded the claim may be.' [20 C. J. 436.]

"In this case the appropriation, if there was such an appropriation, was made upon a claim which three lawyers had advised appellant he would have a right to use as a bases for such appropriation. Appellant committed no criminal act when he acted upon what he believed to be a meritorious claim. [State v. Reilly, 4 Mo.App. 392.] In the Reilly case, supra, it was well said that a conversion is not punishable unless done with intent to commit a crime, as there can be no crime without a criminal intent. [See, also, State v. Pate, 268 Mo. 431, 188 S.W. 139.] To the same effect this court ruled in the case of Gordon v. Eans, 97 Mo. 587, l. c. 609, 4 S.W. 112, 11 S.W. 64, 370."

In the case of State v. Reilly, 4 Mo.App. 391, l. c. 399, the court said:

"It is impossible to imagine an act of conversion which will be at the same time criminal and yet done in good faith. If the defendant really believed, although mistakenly, that he had a claim against his principal, and in good faith undertook to secure himself against loss, the essential element of criminal intent was wanting, and so there could be no crime."

The question in this case was as to how the transaction was conducted. Under these circumstances the matter of good faith on the part of the appellant was the sole issue. If Instruction D had been given the question of good faith on part of the appellant would have been properly submitted to the jury. It was error to refuse this instruction.

Another reason that this instruction should have been given is that it is a converse of the two instructions given on behalf of the State that directed a verdict in its behalf. The matter covered by Instruction D was not covered by any...