State v. Adams

• Decision Date: 02 February 1892
• Citation: 108 Mo. 208,18 S.W. 1000
• Parties: STATE v. ADAMS.
• Court: Missouri Supreme Court

18 S.W. 1000

108 Mo. 208

STATE v. ADAMS.

Supreme Court of Missouri, Division No. 2.

February 2, 1892.

EMBEZZLEMENT — INDICTMENT — EVIDENCE — INSTRUCTIONS — INTENT — CROSS-EXAMINATION.

1. An indictment under Rev. St. § 3549, for embezzling a piano, is sufficient if it substantially follows the language of the statute.

2. The concluding words of the indictment, that defendant did "feloniously steal, take, and carry away" the piano, merely state conclusions, and do not render the indictment bad for duplicity.

3. Where it appears that defendant was the prosecuting witness' agent for the sale of pianos and organs, and that their transactions extended over several years, a statement of accounts rendered by the prosecuting witness to defendant, which shows that defendant had the piano in question on hand at a certain date, is properly admitted in evidence after it was first introduced in part by defendant during the cross-examination of the prosecuting witness.

4. Under such circumstances, copies of letters written by the prosecuting witness to defendant, requesting him to make a settlement and account for the pianos, are admissible, especially where defendant does not deny the sale of the piano and the appropriation of the proceeds, but claims that he did so for the purpose of procuring a settlement, and of retaining in his hands money enough to pay the balance due himself.

5. An instruction that if defendant, with intent to embezzle the piano, sold it, and, to further carry out such purpose, took a note in his own name, and sold the note, he would be guilty, is correct.

6. A provision in the contract under which defendant handled and sold the pianos, that pianos remaining longer than a certain time should be returned, or defendant would pay interest thereafter, does not charge defendant's rights as to pianos remaining longer than the period specified; he was still only an agent to sell them.

7. Where defendant in his cross-examination volunteers the statement that he went away, it is proper to allow him to be asked when he went away.

Appeal from circuit court, Adair county; ANDREW ELLISON, Judge.

W. A. Adams was indicted and convicted for embezzling a piano, the property of one James A. Guest, and appeals. Affirmed.

A. D. Risdon and F. M. Harrington, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

Defendant was indicted under section 3551, Rev. St., for the embezzlement of one piano, of the value of $300, the property of James A. Guest. Upon a trial he was convicted, and sentenced to imprisonment in the penitentiary for two years. From this sentence, defendant appealed to this court. The evidence shows that James A. Guest was a wholesale dealer in pianos and organs at Burlington, Iowa, and that defendant was a retail dealer in musical instruments at Kirksville, Adair county, Mo. That prior to September, 1885, defendant had acted as agent for Guest in the sale of pianos and organs. On the 7th day of September, 1885, these parties entered into a written agreement, by which defendant undertook to act as agent for Guest in the sale of these instruments in Kirksville, and such other territory as Guest might thereafter designate. Among the terms and conditions upon which this agency was made and accepted, defendant agreed to take the instruments on consignment, and sell them, and promptly remit proceeds, whether in notes or money, for which he was to receive a commission. Under this agreement the business was conducted until about April, 1888, when it was terminated by Guest. On the 27th of June, 1887, one style S, Star piano, No. 5758, was consigned to defendant at Kirksville for sale under the terms of the agency. On the 14th of December, 1887, defendant sold this piano to one Abner Russell, of Kirksville, for $300, and in payment therefor Russell conveyed to him some real estate for the consideration of $100, and gave him his note for $200, payable in three months. This note defendant sold and assigned in a few days thereafter, and received the proceeds. This transaction was not reported to Guest, nor did defendant account to him for the piano or the proceeds of the sale. The evidence tended to prove that defendant endeavored to conceal this transaction from Guest, and made false statements in regard to what disposition had been made of this piano. The defense was that, in the transaction between the parties, there were open, unadjusted accounts about which they differed, and that defendant retained the proceeds of the sale of this piano for the purpose only of procuring a settlement of the accounts, and of retaining in his hands money enough to settle balances he claimed to be due him. To make out this defense defendant was permitted to introduce testimony covering all the transactions of the parties while the agency continued, including statements of accounts made by them. Any other facts will be stated in connection with the questions discussed. The sufficiency of the indictment is challenged on two grounds: First. That it does not set forth with sufficient precision the capacity in which defendant acted, — whether as agent or collector. Second. It improperly joins in one count two distinct offenses, — embezzlement and larceny.

1. The indictment charges that defendant, "being then and there agent and collector of a certain private person, to-wit, one James A. Guest, and the said W. A. Adams being then and there not a person under the age of sixteen years, did then and there, by virtue of his employment as agent and collector of the said James A. Guest, have, receive, and take into his possession and under his care certain personal property, to-wit, a style S, Star piano, No. 5758, of the value of three hundred dollars, and of the property belonging to the said James A. Guest; and the said W. A. Adams the said piano then and there feloniously did embezzle and fraudulently convert to his own use, without the assent of his employer, the said James A. Guest, the owner of said piano; and the said W. A. Adams, the said piano, in manner and form aforesaid, feloniously did steal, take, and carry away, — against the peace and dignity of the state." A reading of section 3549 of the statute, under which this indictment is framed, will show that the language used, creating the offense attempted to be charged, is substantially followed by the indictment. The uniform ruling of this court has been that an indictment for an offense created by statute will be sufficient if the language of the statute is substantially followed. State v. Mohr, 68 Mo. 303; State v. Coulter, 46 Mo. 565; State v. Johnson, 93 Mo. 319, 6 S. W. Rep. 77.

2. We do not think the indictment bad for duplicity. The facts charged do not constitute a common-law larceny. They constitute the statutory crime of embezzlement, and nothing more. The concluding words of the indictment, that defendant did "feloniously steal, take, and carry away," etc., merely state conclusions, which are not justified by the facts stated in the body of the indictment, yet this form of conclusion is frequently used in charging embezzlement. Bishop says: "This allegation is unnecessary, but the practice is to insert it, and it seems to be required by the decisions." 2 Bish. Crim. Proc. §§ 315, 333; Hamuel v. State, 5 Mo. 261; Com. v. Simpson, 9 Metc. (Mass.) 141.

3. On the trial, prosecuting witness testified in behalf of the state. On cross-examination defendant's counsel inquired of this witness as to transactions between him and defendant from a period antedating the contract down to the termination of the agency. In this cross-examination, counsel had before him statements of account which had been made by Guest to defendant, and examined witness as to items of charges and credits therein. One of these statements was dated September 1, 1888. Witness was unable to testify as to items of this statement without reference to his books, but did testify that he had written defendant repeatedly, and he had never disputed the statement. The state afterwards introduced in evidence a statement made by defendant, showing the pianos and organs on hand April 19, 1888. This statement included the piano specified in the indictment, and also several organs. The state then, over defendant's objection, introduced the statement made by Guest to defendant of September 1, 1888. This included the same piano and organs as were contained in the...