State v. Adams

• Decision Date: 10 March 1947
• Docket Number: 40167
• Citation: 200 S.W.2d 75,355 Mo. 1186
• Parties: State v. Kenneth R. Adams, Appellant
• Court: Missouri Supreme Court

200 S.W.2d 75

355 Mo. 1186

State v. Kenneth R. Adams, Appellant

No. 40167

Supreme Court of Missouri

March 10, 1947

Appeal from St. Francois Circuit Court; Hon. Randolph W Weber, Judge.

Reversed and Remanded.

Raymond S. Roberts, T. A. Matthews, M. C. Matthes, and Louis E. Zuckerman for appellant.

(1) The court erred in permitting the prosecutng attorney to cross-examine the state's witness, Leonard A. Meesey concerning an alleged extra-judicial statement theretofore made and a deposition theretofore given by the witness Meesey, upon the theory that the witness, Meesey had become an adverse witness when he stood upon his constitutional rights and refused to testify to any statements theretofore made, either in such purported extra-judicial statement or in such deposition; the witness, Meesey not having been shown to have been a hostile witness and no foundation having been laid to show surprise on the part of the state. State v Hogan, 352 Mo. 379, 177 S.W.2d 465; State v. Bowen, 263 Mo. 279, 172 S.W. 367; State v. Drummins, 274 Mo. 632, 204 S.W. 271; Burnam v. C.G.W. Ry. Co., 320 Mo. 25, 100 S.W.2d 858; Woelfle v. Conn. Mutual Life Ins. Co., 234 Mo.App. 135, 112 S.W.2d 865; Crabtree v. Kurn, 173 S.W.2d 851. (2) The court erred in overruling the defendant's motion for a directed verdict, in the nature of a demurrer to the evidence, offered at the close of the entire case. State v. Davis, 315 Mo. 1285, 292 S.W. 430; 7 C.J. 549, sec. 160; 7 C.J. 547. sec. 155; State v. Bowman, 247 S.W. 143. (3) The court erred in giving and reading Instruction 2, since said instruction was erroneous in the following particulars: Because the state failed to prove that defendant and Meesey acted together with a common intent for the purpose of embezzling funds belonging to the Bank of Leadwood. Because said instruction was bottomed on the erroneous assumption that the defendant, as agent and president of the Bank of Leadwood, received or obtained control of moneys of the value of $ 30 or more; there having been no evidence offered to show that the defendant came into possession or had the care or control of any money belonging to the bank. (4) Because the instruction was erroneous and improper, since it authorized a conviction of the defendant if the jury believed that he acted with another in the commission of the crime, although there was no evidence to support that portion of the instruction, and the defendant was not charged as an accessory, or in a conspiracy, but was individually charged with personally embezzling funds of the Bank of Leadwood. State v. Farmer, 111 S.W.2d 76; State v. Hesselmeyer, 123 S.W.2d 90; 7 C.J. 547, sec. 155; 7 C.J. 549, sec. 160; State v. Bowman, 247 S.W. 143; 20 C.J. 457, sec. 52. (5) The court erred in giving Instruction 3 because there was no evidence upon which to submit the question whether defendant acted with Meesey, with common intent. (6) Because it authorized a conviction if the jury believed the money was converted to the defendant's own use or to the use of another (Meesey). (7) Because this instruction submitted the element of "acting with common intent" only as to the conversion of the funds, and not on the question of the embezzlement of the funds. State v. Farmer, 111 S.W.2d 76; State v. Hesselmeyer, 123 S.W.2d 90; State v. Bowman, 247 S.W. 143, p. 549, sec. 160; 7 C.J., p. 547, sec. 155; 20 C.J. 457, sec. 52. (8) It was error on the part of the court to refuse to sustain the motion of defendant to strike the testimony of O. O. Wyrick, with reference to certain exhibits, and to strike the exhibit, when the State failed to connect defendant with their making or keeping, or that he had knowledge thereof. State v. Farmer, supra; State v. Davis, supra; State v. Hesselmeyer, supra; State v. Peer, 39 S.W.2d 528; 32 C.J. Sec., sec. 685a, p. 559; 32 C.J. Sec., sec. 685f, p. 562; 32 C.J. Sec., sec. 693, p. 574; Nall v. Brennan, 23 S.W.2d 1053; No Dust-O Co. v. Home Interest Co., 46 S.W.2d 203.

J. E. Taylor, Attorney General, and Robert L. Hyder, Assistant Attorney General, for respondent.

(1) The manner of examination of Meesey, an accomplice of defendant, was proper. State v. Hogan, 177 S.W.2d 465; Crabtree v. Kurn, 351 Mo. 628, 173 S.W.2d 851. (2) There was ample evidence to support the verdict. Sec. 4471, R.S. 1939; State v. Edwards, 345 Mo. 929, 137 S.W.2d 447. (3) Instruction 2 was proper and supported by the evidence. State v. Edwards, 345 Mo. 929, 137 S.W.2d 447. (4) Instruction 3 was a proper converse instruction, and contained all the elements of Instruction D-5 and D-6, refused. (5) It is unnecessary to show that the defendant obtained the embezzled funds for himself. State v. Edwards, 345 Mo. 929, 137 S.W.2d 447. (6) Instruction 4, given, contained all the elements of Instruction D-11, refused. (7) Exhibits A and B were properly admitted to show the status of the John S. Towl account.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Kenneth R. Adams appeals from a judgment imposing a sentence of two years' imprisonment upon conviction for embezzling funds of the Bank of Leadwood. (Sec. 4471, R.S 1939.) He contends the State did not make a submissible case; that error was committed in the manner of examining a witness, in the admission of evidence, and in the giving and refusing of instructions.

Appellant succeeded to the presidency of the Bank of Leadwood, Missouri, a corporation, upon the death of John S. Towl and was also President of the First State Bank of Bonne Terre, Missouri. Leonard A. Meesey was Cashier of the Bank of Leadwood from 1940 to May 12, 1943, when he confessed to a shortage of $ 21,200, which shortage is not questiond, and resigned as Cashier. Appellant and Miss Clara Evans were coexecutors of the estate of John S. Towl, deceased. The State's theory was that appellant and Meesey acted together in the commission of the offense. Appellant and Meesey were officers of the Bank and within the provisions of Sec. 4471, supra, if appellant's connection with the embezzlement was established. Several transactions are embraced in the total sum charged to have been embezzled and an understanding of the situation calls for a statement in greater than ordinary detail.

O. O. Wyrick, an Examiner for the Department of Finance of the State of Missouri, examined the Bank in May, 1943. He identified exhibit A as a ledger sheet kept in the bank records and exhibit B as a ledger sheet found in the lockbox of Cashier Meesey. Exhibit B reflected the true condition of the account of the Towl estate with the Bank while exhibit A reflected the false condition of said account overs the years 1941, 1942, and 1943. Exhibit B showed a deposit in the Towl account on February 6, 1941, of $ 12,050 whereas exhibit A showed a deposit of $ 17,150.92, a difference of $ 5,100. Exhibit B showed a withdrawal of $ 5,900 on April 18, 1941, whereas exhibit A showed no withdrawal. Exhibit B showed a withdrawal of $ 1,000 on June 7, 1941, whereas exhibit A showed no withdrawal. Exhibit B showed a withdrawal of $ 4,000 on December 31, 1941, whereas exhibit A showed no withdrawal. April 29, 1942, exhibit A showed a deposit of $ 17,935.99, whereas exhibit B showed a deposit of only $ 13,335.99, a difference of $ 4,600. These discrepancies total $ 20,600. The balance after said deposit of $ 17,935.99 in the Towl account was $ 56,069.91 on exhibit A and after said deposit of $ 13,335.99 was $ 34,869.91 on exhibit B. A Bank of Leadwood duplicate deposit slip in Meesey's lockbox showed "Deposited to credit of estate of John S. Towl by K. R. Adams, Adm. 4-29-1942"; as follows:

"Currency

$ 17,935.99

Silver Less KRA

3,400

Checks as follows

14,535.99

Less L A M

1,200

$ 13,335.99

(Erasure)

3400

700

2700 Cash

13,335.99"

"KRA" are the initials of appellant while "L A M" are the initials of Leonard A. Meesey, Cashier of the Bank.

Exhibit D is appellant's $ 600 check of July 11, 1941, on the First State Bank of Bonne Terre, Missouri, and payable to the estate of John S. Towl, and endorsed: "Estate of John S. Towl by K. R. Adams, Adm." Exhibit E is a deposit slip of the Bank of Leadwood for $ 600 to the credit of the Towl estate, dated 7-22-41, with the notation: "Sale of Bank Stock." These were found in Cashier Meesey's lockbox. Exhibit A shows a deposit corresponding with the slip but we find no corresponding deposit on exhibit B. When the Examiner questioned appellant concerning this transaction appellant stated he purchased Bank of Leadwood stock from the Towl estate; that he paid "by check"; that he would know if a $ 600 check against his account was not paid as he did not carry a very large account; that, when shown the $ 600 check had never been paid and inquired of how payment had been made, he remembered he took the cash over and paid for it. Appellant was then informed that his check and the deposit slip were found attached together in Meesey's lockbox and was asked why he had not picked up his check when he paid the cash. Appellant replied that "he was loose in his business and trusted Mr. Meesey and didn't bother to pick up the check."

A $ 6,200 check against the Towl estate account came into the Bank of Leadwood on January 8, 1943. The account had a credit balance of $ 2,856.46 as shown by exhibit B. Several transactions resulted. A deposit of $ 6,200 appeared to the credit of the Towl estate account in the Bank without any deposit actually being made by the estate. A $ 6,200 sight draft was issued by Cashier Meesey against the First State Bank of Bonne Terre. The Bank of Leadwood however, had no funds to its credit with the First State Bank of Bonne Terre. Appellant was Secretary of the Bonne Terre Building & Loan Association. A $ 6,200 demand note of said...