State v. Adams
| Decision Date | 12 December 1927 |
| Docket Number | No. 28239.,28239. |
| Citation | 300 S.W. 738 |
| Parties | STATE v. ADAMS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.
J. B. Adams was convicted of embezzlement of diamonds while in his possession as agent of the owner, and he appeals. Affirmed.
T. C. Tadlock, of Joplin, for appellant. North T. Gentry, Atty. Gen., and J. D. Purteet, Sp. Asst. Atty. Gen., for the State.
An information was filed in the circuit court of Jasper county charging appellant with embezzlement in four counts. At the close of its case the state elected to stand on the first count, in which he was charged with the embezzlement of certain diamonds while the same were in his possession as the agent of the owner. The jury found him guilty, and' fixed his punishment at imprisonment in the penitentiary for a term of 3 years. He was sentenced in accordance with the verdict, and was then granted an appeal to this court.
As we gather the facts from the record, it appears from the state's evidence that the prosecuting witness, E. Rose, was an elderly man who had been in the jewelry business in the city of Joplin for 50 years. At the time in question, he had quit the regular jewelry store business, and was engaged in appraising diamonds for banks and other money lenders, and in handling diamonds for others as a broker. In the fall of 1923 he had four transactions with appellant in which he turned over certain diamonds to appellant to sell for him, and appellant sold the diamonds, and accounted to him for the same. On April 14, 1924, he placed in appellant's hands for sale a pair of white gold earscrews set with diamonds, weighing together 1 80/100 carats, and a lady's white gold ring set with a one carat diamond, with the understanding and agreement that he and appellant would divide equally the profits realized over and above the wholesale price of each of these articles, in the event of a sale. Rose had received these diamonds on consignment from the Gray Jewelry Company, a brokerage firm of Kansas City, Missouri. The wholesale price on the earscrews was $450, and $265 on the lady's ring, although Rose testified that the fair market value of the earscrews was about $1,200, and that of the lady's ring about $750. Appellant gave Rose a receipt for the earscrews and the lady's ring, and the receipt included another small ring which appellant later sold and accounted for. A few days later appellant told Rose that "he was working" these diamonds on a mining deal at Tulsa, Oklahoma, and that, when the diamonds were paid for, there would be "a nice profit" to divide. On May 28, 1924, appellant returned from Tulsa, and reported a good prospect for the sale of diamonds at Miami, Fla., and on that day Rose placed in his hands for sale two additional diamonds to take with him on the Miami trip. Appellant gave Rose a new receipt on May 28, 1924, covering the earscrews, the lady's ring, the small ring mentioned, and the two additional diamonds, and tore up the old receipt which he had given Rose on April 14th. In two or three days appellant brought back the two additional diamonds mentioned, and Rose credited him with the return of these diamonds on the back of the receipt. This receipt, which shows all diamonds received by appellant on April 14 and May 28, 1924, and all credits, was offered in evidence and identified as Exhibit A. The receipt proper was written and signed by appellant, and the credits and accounting on the back thereof were written and signed by Rose. Including credits written on the back of the receipt, indicated by the word "(over)," this exhibit reads as follows:
Shortly after appellant returned from the Miami trip, he went back to Tulsa to further promote his mining deal, and, "after it ran along for a few weeks," Rose demanded of appellant to return the earscrews and the lady's ring. Rose was "trying to get the matter settled up." During the month of July, 1924, appellant sent Rose four special delivery letters from Tulsa, at short intervals, in all of which he discussed his mining deal there, and referred in glowing terms to the profit that he and Rose would make out of the venture by using the diamonds to secure the payment of another promoter's commission. In August appellant came to Joplin, and told Rose the diamonds had been put in escrow for this purpose. Rose said to him, "You want to be very careful," and appellant replied, "They are in a bank, and perfectly safe." Appellant continued to send Rose special delivery letters and telegrams at intervals, during the months of August, September, November, and December, 1924, and January and February, 1925. These letters and telegrams are of the same tenor as the letters written in July, 1924, except that many of them seem to have been written in reply to urgent demands from Rose for the return of the diamonds. They contain various excuses and explanations for delay, and repeated promises to return the diamonds or the cost price of the diamonds, plus Rose's share of the profit out of the mining deal. All of these letters and telegrams were marked as exhibits, and offered in evidence at the trial; also one telegram dated December 1, 1924, sent by Rose to appellant, in the following words: "Return diamonds not later than Tuesday night sure.". Rose further testified that appellant knew that these diamonds had been sent to him on consignment by the Gray Jewelry Company, and were charged to him at the wholesale price; that he did not give his consent to appellant to use the diamonds in the mining deal or to put them in escrow in that transaction, and that appellant had his consent to take them to Tulsa for sale only; that he had no partnership arrangement with appellant in the mining deal or otherwise, and no agreement or understanding with appellant, except that appellant was to sell the diamonds and divide the profits on an equal basis; that he repeatedly requested appellant to return the diamonds, and that appellant put him off, from time to time, until he finally concluded the diamonds were gone, and notified the Gray Jewelry Company to that effect: that he did not know appellant had actually sold the diamonds in Joplin until after his arrest on this charge in October, 1925. As to this matter, Rose said:
And he further testified that the diamonds were never returned to him, and that he received nothing in payment for them. On cross-examination, Rose said that he had nothing to do with the mining deal, but, after appellant told him the diamonds were held in escrow on the deal, he expected to share in the profits of the deal, if there were any profits.
Dr. J. Barson, a practicing physician and surgeon of Joplin, testified for the state that appellant tried to sell the earscrews to him in the spring of 1924, and on May 9, 1924, came back and pawned the earscrews with him for a loan of $150. In a few days he redeemed them, and paid the loan of $150, plus $5 interest, and said he had sold the earscrews. On June 10, 1924, he said that his sale did not go through, and he needed some money to use in a mining deal, and again pawned the earscrews for a loan of $150. On June 27, 1924, he borrowed $50 more, thereby increasing the loan to $200. On July 2, 1924, he wanted to further increase the loan, and, after being refused any further loan, he sold the earscrews to Dr. Barson for $300. In this transaction appellant received the $100 due on the sale, after the payment of the $200 previously received by him in loans, and gave Dr. Barson a bill of sale covering the earscrews. At this time appellant told Dr. Barson that he acquired the earscrews with money he made out of a mining deal. In this connection, the witness said:
This witness further said that he kept the earscrews until the fall of 1924, when he sold them.
C. S. Poole, a jeweler at Joplin, also testified for the state. He said that appellant came to his store several times in the early part of May, 1924, and tried to sell him the lady's ring, but they did not agree on the price; that on May 20, 1924, appellant returned, and sold him the ring for $200, and said he needed the money in a mining deal. This witness further said that he paid for the ring with a bank check, and appellant cashed the check.
It further appears from the state's evidence that, following his arrest, and while in jail at Joplin, appellant had a conversation with W. F. Gibson, chief of detectives at Joplin, Mr. Coyne, the prosecuting attorney, and Era Rose, son of E. Rose, concerning his disposition of the diamonds. As to this conversation, the witness Gibson testified that:
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