Mansur v. Lentz

• Decision Date: 07 April 1919
• Docket Number: No. 13198.,13198.
• Citation: 201 Mo. App. 256,211 S.W. 97
• Parties: MANSUR v. LENTZ.
• Court: Missouri Court of Appeals

211 S.W. 97

201 Mo. App. 256

MANSUR v. LENTZ.

No. 13198.

Kansas City Court of Appeals. Missouri.

April 7, 1919.

Appeal from Circuit Court, Ray County; Frank P. Divelbiss, Judge.

Action by C. O. Mansur against Hale Lentz. Judgment for plaintiff, and defendant appeals. Reversed.

Lavelock & Kirkpatrick and J. L. Farris & Sons, all of Richmond, for appellant. Garner, Clark & Garner, of Richmond, Jacobs & Henderson, of Kansas City, and Roberts, Milligan & Milligan, of Richmond, for respondent.

ELLISON, P. J.

Plaintiff's action is for slander. He charged in the several counts Of his petition that defendant willfully and maliciously spoke of him the following false, defamatory, and slanderous words, to wit:

To E. M. Chase: "Mansur has spent the town's money, and he could be sent to prison for it."

To D. W. Stratton: "Ote Mansur has done enough that I could send him to the pen." To E. W. Kimbrough: "Kimmy, ain't you on Ote Mansur's bond? You had better get off. He is embezzling the town's money."

To Charles Stapp: "Mansur has embezzled the town's money, and the rest of them are trying to protect him. I have got the dope to send all of them to the pen, and I am going to start up a little Terre Haute."

These charges had reference to plaintiff's use of public money in violation of section 4556, R. S. 1909, and were so understood by the persons to whom the charges were addressed. The facts in the case are either admitted by the parties or else so conclusively shown as to become indisputable. The words were spoken of plaintiff in the year 1916. At that time he was treasurer of the town of Hardin, in Ray county, and had been for a number of years prior to speaking of the words. Others had held the office, at different times, but principally it was occupied by plaintiff. While holding the office, including the year 1916, plaintiff used the public money received by him as treasurer in his own business as a merchant in the town. When he quit the office, in February 1918, he was instrumental in the appointment of his son, who was his partner in the mercantile business, as his successor. At this time there was near $800 due from him as treasurer, but nothing was paid thereon. Mr. Beery was appointed treasurer in May, 1916, in place of plaintiff's son, who had removed from the town. Mr. Beery stated that he did not know when he was made treasurer, but that he took charge "about July, 1913," and that he did not know whether he succeeded plaintiff or his son; that plaintiff gave him his personal check for $772, dated the 11th of July, 1916, as the sum due the town. Defendant offered to show that plaintiff borrowed the money with which he settled with Mr. Beery, and upon which this check was based. Plaintiff objected, and the offer was refused by the court as being immaterial.

If defendant's statements concerning the plaintiff, upon which this action is based, were true, the action must fail; for it is the law that, if it appears that defendant spoke the truth, it is a complete defense. Section 1838, R. S. 1909; Ukman v. Daily Record, 189 Mo. 378, 395, 88 S. W. 60; McCloskey v. Pulitzer Pub. Co., 152 Mo. 339, 348, 53 S. W. 1087. It must be conceded that the words used by defendant, when applied to plaintiff as treasurer of the town, constituted an accusation of embezzlement. Therefore, for the defense to succeed, it must appear that plaintiff committed that crime as it is known and defined by the law. The statute (section 4556, R. S. 1009) applicable reads as follows:

"If any officer, * * * agent or servant of incorporated cities and towns, * * * shall convert to his own use, in any manner whatever, or shall use by way of investment in any kind of property or merchandise, or shall make way with or secrete any portion of the public moneys, or any moneys that may have come to him or them by virtue of his or their office or official position, or by virtue of any trust reposed in him or them, * * * shall, upon conviction, be punished in the manner prescribed for stealing property of the kind or the value of the article so embezzled, converted, taken or secreted."

From the facts stated above relating to what plaintiff did, it is manifest that he violated that statute. Plaintiff's counsel state in this court that it was "admitted at the trial that, as treasurer, he deposited the town's money in his own name, and used it in his individual business." It was further conceded that this was in violation of the statute, yet by a singular course of reasoning it is nevertheless claimed that, though he intentionally committed the forbidden acts which constitute the crime, he did not commit the crime. The foundation for this claim is that embezzlement cannot be committed without an intent to commit a crime, and that, if plaintiff did not so intend, it was false and slanderous to say that he committed the acts which make the crime.

It is true that intent is necessary to constitute the crime of embezzlement (State v. Pate, 268 Mo. 431, 188 S. W. 139), but plaintiff's error lies in the place to which he seeks to apply such intent. He desires to consider the intent as an indefinable something showing a dishonest and corrupt heart; whereas, in fact, the intent relates to his having knowingly and intentionally, committed the forbidden acts. When he has done that, the crime is complete. If he has committed the acts inadvertently—unknowingly —as if, for instance, he, by some accidental or unintended means, had mixed the public funds with his private account, there would be no intent, and a crime would not be made out. But to say one may intentionally do a forbidden act, made criminal by statute, and yet claim he did not intend to commit a crime, is to nullify the statute making the act a crime.

In State v. Silva, 130 Mo. 440, 464, 32 S. W. 1007, 1014, quoted and approved in State...