State v. Bagley
| Decision Date | 20 August 1936 |
| Citation | 96 S.W.2d 331,339 Mo. 215 |
| Parties | The State v. Elmer F. Bagley, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. I. J. Seehorn Judge.
Affirmed.
Robert L. Holder and O. H. Swearingen for appellant.
(1) The court erred in refusing to instruct the jury at the close of all the evidence in the case to find the defendant, Elmer F Bagley, not guilty for these reasons: (a) There was no evidence that a crime had been committed. State v Peck, 253 S.W. 1019, 299 Mo. 454. (b) There was no evidence of criminal intent on the part of defendant, Elmer F. Bagley. State v. Peck, supra. (2) The court erred in failing to admonish the jury to disregard the offensive language of the prosecuting attorney in his opening statement. State v. Dixon, 253 S.W. 746; State v. Kyle, 168 S.W. 681, 259 Mo. 401; State v. Saunders, 232 S.W. 973, 288 Mo. 640; State v. Stubblefield, 58 S.W. 337, 157 Mo. 360; 16 C. J., p. 890, sec. 2226; State v. Horton, 247 Mo. 657, 153 S.W. 1051. (3) The court erred in giving Instruction 2. (a) For the reason that it failed to outline the offense of embezzlement by bailee. State v. Nicholas, 121 S.W. 12, 222 Mo. 425; 20 C. J. 413, sec. 4; 1 Bishops Criminal Law (6 Ed.), sec. 45. (b) For the reason that it required the jury to find defendant was a "bailee" without evidence to that effect. State v. Peck, 253 S.W. 1019; Powers v. Woolfolk, 111 S.W. 1187. (c) Because the instruction contained the phrase "but in violation of said power of sale and before the consummation of said loan by payment to the said Elliott of the amount thereof and without reasonable apprehension or fear of the diminution or depreciation of the value of the said securities." (d) Because there was no evidence of the value of one share of the stock of Safety Savings & Loan Association. (e) Because the instruction fails to define the term "bailee" as used therein in a technical sense. (f) Because the instruction pretermits all inquiry as to venue. State v. Igo, 108 Mo. 568.
Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.
(1) The appellant has waived his right to insist the court erred in overruling his demurrer to the evidence at the close of the State's case. State v. Barr, 78 S.W.2d 104; State v. Vigus, 66 S.W.2d 854. (2) The court did not err in overruling the demurrer at the close of the entire case. State v. Betz, 207 Mo. 589; State v. Gould, 46 S.W.2d 886; State v. Stevens, 220 S.W. 844. (3) The court did not err as to its ruling on the opening statement of the prosecuting attorney. State v. Painter, 44 S.W.2d 79; State v. Nasello, 30 S.W.2d 141. (4) The court did not err in its ruling as to the cross-examination of appellant. State v. Loahmann, 58 S.W.2d 309; State v. Albritton, 40 S.W.2d 676; State v. Gilmore, 81 S.W.2d 431; State v. Hawley, 51 S.W.2d 77. (5) The court did not err in giving State's Instruction 2. State v. Raines, 62 S.W.2d 727; State v. Carter, 64 S.W.2d 687. (6) The court did not err in not instructing on collateral matters. State v. Shulls, 44 S.W.2d 94; State v. Albritton, 40 S.W.2d 676.
The appellant was indicted by the grand jury of Jackson County, Missouri, for the crime of embezzlement as a bailee. He was convicted and his punishment assessed at three years' imprisonment in the State penitentiary. From that judgment and sentence he has duly appealed to this court.
W. C. Elliott, was the owner of some Safety Savings & Loan Association stock and had been trying to sell a part of these shares. The best offer he could get was approximately fifty per cent of its face value. He saw an advertisement in the Kansas City Star that the appellant would loan sixty per cent of its market value. Some time in January, 1934, Elliott went to the office of the appellant and was told by the appellant that he could obtain a loan of sixty per cent of the market value for the stock. No loan was made on that day. On February 1, 1934, Elliott went back to the office of the appellant and endorsed ten shares of this stock so he could obtain a loan. The appellant advised Elliott that he would have to come back in a day or two to get his money. On February 3, 1934, Elliott went back to the office of the appellant and received the $ 305.76 as a loan on his stock. Interest was due on this stock March 1, 1934, and it was agreed that Elliott would be entitled to the interest. On that date, Elliott did not receive the interest on this stock, and upon investigation was informed by the Savings & Loan Association that appellant had sold the certificate. He denied to Elliott that he had sold the certificate. He said if it was sold, it must have been sold by his eastern office; in that event some mistake had been made and "he would straighten the matter out."
The evidence disclosed that the appellant transferred the stock to Robert F. Allen on February 2, 1934. Some Safety Savings & Loan Association stock was being assembled by A. E. Howell to be used in purchasing some real estate belonging to the association. The sale was made by G. E. Tetters, and the purchase price paid for the stock was $ 538.
The appellant's defense was that he had a right to sell the stock at any time he thought the stock had depreciated in value. The appellant contended that Elliott signed a note for $ 312, dated February 1, 1934, and due February 1, 1935, secured by the certificate of stock in question. The collateral agreement of the note, among other things, gave to Elmer F. Bagley & Company the right to sell the stock if they felt unsafe or unsecure for any reason whatever, or feared diminution or depreciation in the value of the securities. Elliott denied that he signed the note. But he understood that the stock could be sold, but told the appellant not to sell it as he could put up additional securities. Other pertinent facts will be stated in the course of this opinion.
I. The appellant contends that the court erred in refusing to instruct the jury at the close of all the evidence to find the appellant not guilty. It is the contention of the appellant that the contract with Elliott was a contract of a pledge and not a contract of bailment. Therefore, the evidence fails to show an embezzlement of a bailment and the appellant is not guilty of the crime charged.
The appellant relied upon the case of State v. Peck, 299 Mo. 454, 253 S.W. 1019. In that case the prosecuting witness bought certain stock from the defendant. No cash was involved in the transaction. The defendant retained the stock sold to the prosecuting witness, who also deposited other stock to secure the defendant. The contract recited that it is understood and agreed that "all securities carried in this account or deposited to secure the same be carried in our general loans and be sold at public or private sale, without notice, when such a sale or purchase is deemed necessary by us for our protection." We held that the relation of pledgor and pledgee was created by the contract, and that being the relation, an indictment of embezzlement by the broker as bailee cannot be sustained. We also, held that if the transaction were a bailment, there was an express grant of power to defendant's company to sell the stock, and there could be no embezzlement of the stock by the bailee, or of the money for which it was sold, for under the contract the defendant had both the right to sell and to appropriate the proceeds to the account of his company.
We think that case is distinguishable from the case at bar. In the case at bar, the stock certificate was deposited with the appellant on February 1, 1934. It was sold on the next day. It was not until the following day the loan was completed. It is evident from the record that the appellant had to sell the certificate in order to get the money to make the loan to Elliott. The evidence is sufficient to show that the appellant sold the certificate before the loan was consummated. At the time it was sold, certainly the appellant was a mere bailee, he was lawfully in possession of the property, but until he transferred the money to Elliott he did not have any debt to be secured by a pledge and therefore could not acquire any interest or title in the certificate. He not only sold the property before the loan was consummated, but retained the proceeds over and above the amount turned over to Elliott.
In the case of State v. Betz, 207 Mo. 589, 106 S.W. 64, a wholesaler sent four diamonds to the defendant under the following conditions: "The goods described below are sent at your risk for examination and selection, but none are considered sold, nor does title pass until the regular bill of sale has been sent." We held that this was not a sale of the four diamonds with an option to defendant to return them if he should not like them, but an option to purchase them if he was satisfied, hence, the title did not pass to defendant, and as the defendant sold the diamonds without accounting to the wholesale dealer he was guilty of embezzlement as a bailee.
We think that the principle in that case is applicable to the case at bar. Here, the appellant had no interest to protect until he advanced the money to Elliott. This is so, even if we assume that Elliott signed the note that the appellant claims he did (though Elliott denied doing so). If Elliott did not sign the note which contained the power of sale above quoted and the contract of the pledge was silent as to the right to sell the pledge then the pledge could not be sold until the debt was due. [49 C. J. 948, sec. 98.] We hold the evidence was sufficient to sustain the verdict.
II. The prosecuting attorney in his opening statement stated that the State would show other transactions similar in character to the one alleged in...
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