Hamuel v. State

• Court: Missouri Supreme Court
• Writing for the Court: MCGIRK
• Citation: Hamuel v. State, 5 Mo. 260 (Mo. 1838)
• Decision Date: 30 June 1838
• Parties: J. HAMUEL v. STATE OF MISSOURI.

5 Mo. 260

J. HAMUEL

v.STATE OF MISSOURI.

Supreme Court of Missouri.

June Term, 1838.

J. H. THORINGTON, for Plaintiff in Error. 1. The first count in the indictment is bad and insufficient, and does not show the nature of the agency or employment of the defendant by Arthur, Stearns & Co. 2. That the verdict is not responsive to the issue, and does not find the prisoner either guilty or not guilty on the charge contained in the indictment; and does not warrant the sentence of the court. 3. That the conviction is illegal, because the court erred as stated in the bill of exceptions, and by refusing to charge and instruct the jury as requested. Authorities referred to are, Archbold's C. P. 119; 1 Chitty's Crim. Law, 281, 282, top paging, 190; 1 Chit. Crim. Law, 171, top paging, 116; 2 Morel & Selwyn, 379, 387; 2 Russell on Crimes, 682.

T. B. HUDSON, for Defendant in Error. 1. That the Circuit Court did right in refusing to give the first instruction requested by prisoner's counsel. The defendant in error contends that it was not material for the State to prove that Messrs. Stearns, Arthur & Co. were the actual owners of the property alleged to have been embezzled. A special property of the thing stolen is sufficient, in cases of larceny, to sustain an indictment. The same rule is supposed to prevail in cases of embezzlement. Arch. C. P. 176, 238; Rex v. McGregor, 17; 2 East. 576; 2 Leach, 932. 2. Stearns, Arthur & Co. had not parted with their lien on the property for storage, and inasmuch as the property was in possession of prisoner, who was the agent employed by Stearns, Arthur & Co. for the purpose of keeping the property for them by special agreement. 3. The employment of prisoner by Stearns, Arthur & Co. was fully proven by the testimony, which is set out in the bill of exceptions. 4. It is not necessary that the employment should be permanent. Arch. C. P. 239; Rev. Code 338-9; Rex v. Spencer, Russ. & Ry. 17, 222; 2 Russ. 209; Rev. Code 179. A special property will support the indictment. Rex v. McGregor, Russ. & Ry. 17; Arch. C. P. 179. 238; Rev. C. E. 515; 2 East. P. C. 576. 5. The second and third instructions given by the court below are correct: see testimony which proves prisoner was the agent of Messrs. Stearns. Arthur & Co. Rev. Code, 117.

MCGIRK, J.

At the May term of the Circuit Court for the county of St. Louis, Hamuel was indicted by the grand jury of said county for embezzling certain goods. The first count charges that on the 20th of May 1838, in the county of St. Louis, the said Hamuel, being then and there employed as agent to John Arthur, Joseph Stearns, and James Arthur, did by virtue of his said employment as such agent, then and there, and while he was so employed as aforesaid, receive and take into his possession certain goods and chattels, to-wit, one engine, fifty brass boxes, and fifty pounds of brass of great value, to-wit, of the value of eighty dollars, for and in the name and on account of the said Arthur and Stearns; and the said goods and chattels then and there fraudulently did embezzle, and so the jurors say, on their oaths, that said Hamuel, in manner and form aforesaid, the said goods, &c. did feloniously steal, &c. The second count charges the defendant with feloniously stealing the said goods, &c.

To this indictment the defendant pleaded “not guilty.” The prisoner was tried, convicted, and sent to the penitentiary for two years. It appears by the record that one John Arthur gave evidence for the State, who said he, as one of the firm of Stearns, Arthur & Co. had lately rented in St. Louis a house to the defendant, and that afterwards one Lewis Newell told him--(here the witness was about to tell what Newell told him, when the witness was stopped by Mr. Mullanphy, of counsel for the prisoner, and objected to him stating any thing told to him by Newell. The court decided that witness might state how it happened he came to watch the prisoner, though it should be that Newell told him the prisoner was stealing. There is, in the opinion of the whole court, no error on this point). The witness then went on to say that about the --day of -- 1838, the prisoner, Hamuel, rented a store from Messrs. Stearns & Co., of which firm witness was one, which firm was composed of John Arthur, James Arthur, and Joseph Stearns, the persons mentioned in the indictment. The prisoner expressed a desire to obtain possession of the store for the purpose of transacting a wholesale grocery business; that there was, at the time the prisoner took possession of the store, one engine, the property of one R. D. Dobbyns, which had been left with said Stearns & Co. for safe-keeping, as commission merchants in the city of St. Louis; that said Dobbyns is still in being; that witness, for himself and co-partners, leased the store to the prisoner for six months. It was agreed, at the time of leasing the store, that the engine should remain in the store, and that the prisoner should have the benefit of the storage therefor; that Stearns & Co. considered themselves liable to Dobbyns for the safe-keeping and re-delivery of the engine to him when the same should be demanded; that there was no contract or privity of contract for storage or otherwise between the prisoner and Dobbyns; that the brass boxes described in the indictment were certain brass boxes belonging to and part of said engine; that the possession of the store and the key thereof had been delivered to the prisoner; that the next day after the contract, renting, &c., was concluded, the witness received intelligence that the prisoner was removing parts of the engine, which excited witness' suspicion; that the witness, in company with one other person, repaired to a place near the store, and there watched a short time, when the witness discovered the prisoner come out of the store, with parts of the engine tied up in a handkerchief; that the witness followed the prisoner to the finishing store of Mr. Snyder, in the city, where the prisoner untied his handkerchief, and Snyder was weighing the brass boxes, when witness entered and accused the prisoner of having stolen the same; whereupon the prisoner offered to return...