State v. Baker

• Decision Date: 23 December 1914
• Parties: THE STATE v. E. W. BAKER, Appellant
• Court: Missouri Supreme Court

172 S.W. 350

262 Mo. 689

THE STATE v. E. W. BAKER, Appellant

Supreme Court of Missouri, Second Division

December 23, 1914

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Affirmed.

W. R Scullin for appellant.

John T Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

ROY, C. Williams, C., concurs. Walker, P. J., and Faris, J., concur; Brown, J., concurs in result.

OPINION

ROY, C. --

Defendant was convicted of embezzlement and sentenced to two years in the penitentiary.

The evidence for the State tended to show that on the 4th of January, 1912, Mrs. Mary L. Barber delivered to him in currency $ 2000, which, by agreement between them, he was to place in a safe deposit box in the bank for her and return to her on demand. She was between fifty and sixty years of age and had been twice married. She was separated from her second husband, who lived in Denver. She owned the house in which she lived at 2316 South 12th street, St. Louis. A son by her first husband and the son's wife lived with her. Her home was encumbered by a mortgage for $ 4000, which fell due May 8 or 9, 1912. One John W. Mackelden owed her $ 3000 secured by mortgage and she had other resources sufficient when converted into cash to clear the home of the encumbrance. She was a midwife and had been conducting a sanitarium, which she had recently ceased keeping.

The defendant was thirty years old, having a wife and one child. He had lived ten years in St. Louis and had been five years in the employ of the National Telephone Directory Company. His business was to procure contracts for advertising in the telephone directory.

Defendant and Mrs. Barber became acquainted in October, 1908, when he called to get her contract for advertising. Between that time and January 4, 1912, he secured six different contracts from her, ranging in amount from $ 36 to $ 225.

The evidence for the State was that defendant visited Mrs. Barber about twice a week, often taking her on car rides, to the theatre and to dinner; all of which he denied, except that he admitted that he was at her house about twice a month, also admitted that she did not know that he was married and that he was at her house half a dozen times after January 4, 1912, prior to his leaving the city about the first of February. In November, 1911, the defendant and Mrs. Barber visited a fortune teller, who told the fortune of each out of the hearing of the other. The fortune teller testified that while the defendant's fortune was being told he offered witness $ 50 if she would induce Mrs. Barber to let him have $ 1500; that the witness refused and told Mrs. Barber not to let defendant have her money, saying to her, "Go home to your own daughter and grandchildren; that man is too young for you; don't give him your money." Defendant in his evidence admitted that he heard the fortune teller say to Mrs. Barber, "You go home to your family, don't go to supper with that man." He also testified that he advised Mrs. Barber to put her money in a safe deposit box and that she told him that in January she would have some money coming in. He testified that at various times he borrowed small sums from Mrs. Barber and paid her for the use of the money; that he loaned her various small sums; that he borrowed $ 200 from her in December, 1911, and that he paid it back. She testified that he returned the $ 200 with $ 10 for the use of it and then took it away again the same evening and that she hadn't gotten it back.

Mr. Mackelden testified that he paid Mrs. Barber $ 2000 in bills on her front porch on January 4, 1912.

Defendant's counsel at the trial conceded that she had the money. Defendant testified that she was owing him $ 45 and that he went to her house about January 4, 5, or 6, 1912, to get it. He then proceeded as follows, "She said she expected a party to pay her some money and he didn't come. I waited a while and she said some one is at the door now. She came in after while and handed me the money in bills." He stated that he saw only the $ 45.

Mrs. Barber testified that on January 4, 1912, she delivered to the defendant $ 2000 in bills, under a promise from him as follows: "I will put it in the safety deposit vault now and nobody can touch it, or find out where it is, and then the day you need it, all you have got to do is to let me know and I will bring it to you." Her daughter-in-law as a witness confirmed that testimony. Mrs. Barber also testified that the $ 2000 was not delivered to defendant as a loan.

About the first of February, 1912, the defendant left St. Louis and went to Chicago, where he stayed with his family until September 15 following. He did nothing while there and had no source of income. He testified that during the time he was there his brother paid him a debt of $ 200 and that he became indebted to his brother for about $ 150. After defendant left St. Louis, Mrs. Barber made inquiries for him in vain, then reported the matter to the police. She testified that she had never recovered any of the money.

Mrs. Barber was dead at the time of the trial. She testified at the preliminary examination of the defendant in the court of criminal correction. She was asked on cross-examination whether she had not expected to marry the defendant. An objection to the question was sustained, but immediately afterwards she was fully cross-examined on that subject, and stated that there was a prospect that they might marry in the future. As a part of her cross-examination a letter written by her to the defendant's wife after his arrest was read in evidence, which contained the following: "If I had been able to come, I would have come to see you today. I am very sorry for you. If you feel half as bad as I do, you are indeed in need of sympathy. Of course, pity does no good. I have been acquainted with Mr. Baker some years but never knew he had a wife and the attentions he paid were those of a single man. We went to the theatre once or twice a week and took long car rides. He took me to dinner, I sit luncheon for him here and he spent evenings with me; New Year's Eve he stayed until twelve o'clock, then wished me many returns of the day. I said, where will we be next New Year? . . . I have been loaning him money for short periods. He brought it back at the agreed time, so he gained my confidence and when I received notice that my husband was going to sue me for half of my property, I just had four thousand dollars ready to pay a deed of trust off on my home. Mr. Baker urged me to get the money in cash and let him deposit it in a safety deposit and he would bring it to me the first of May when due."

Defendant's counsel then proceeded to question her on the theory that the letter stated or implied that the $ 2000 was a loan to defendant. Judge Falkenheimer, of the examining court, said, "No, that letter doesn't mean that, Mr. Scullin, by any manner of construction."

She was asked on cross-examination whether she had an agreement with defendant that he should pay her $ 50 for the use of the $ 200 which she loaned him. The examining court, without any objection being made, said, "That hasn't anything to do with this. For the purpose of this hearing we will assume that this woman loaned him money and got good compensation."

At the trial defendant objected to the reading in evidence of her testimony thus given, for the reason that by the above rulings the examining court had prevented defendant from fully cross-examining her. The trial court overruled the objection, and her testimony was read to the jury. During the reading of her testimony, the trial court said, "You do not claim that this was borrowed money;" and defendant's counsel answered, "Not the $ 2000 or $ 4000."

On the cross-examination of Lizzie Burkett, the daughter-in-law of Mrs. Barber, defendant endeavored show that Mrs. Barber's sanitarium was closed in 1909 by reason of a fraud order issued by the government forbidding her the use of the mails. An objection was sustained. The following then occurred:

"Mr. Scullin: Can't I show the bad reputation of the prosecuting witness?

"The Court: Not in that way.

"By Mr. Scullin: Q. At the time did you know anything about your mother-in-law's business with her attorneys or business affairs? A. No, sir.

"Q. You do know, do you not, that she had business regularly with her attorneys?

"A. Mr. Maroney: I object to that.

"Mr. Scullin: I want to show the money was expended for the payment of attorneys.

"The Court: I do not see any bearing that it has.

"Mr. Scullin: I want to show the natural drain in the expenditure of money.

"The Court: I do not think it is competent.

"Defendant at the time duly excepts to the ruling of the court."

Also the following:

Mr Scullin: I desire to show at the time of Mrs. Barber's death and for some time preceding the same, she had been in difficulties with the local health authorities and had employed Messrs. Zachritz & Bass to extricate her from those difficulties; and that in addition there was by reason of this controversy with the Bell Telephone Company over the publication of advertisements in the telephone book, by reason of an order of the Postmaster-General of the United States, prohibiting to Mrs. Barber the use of the mail for herself and her enterprise. I desire to show that at the time of her death and preceding the same Mrs. Barber had received decoy letters from Federal officers and had answered them and was being investigated by the Federal grand jury, and in answering those letters had made offers to procure abortions and to prevent conception in cases of intercourse, and that she had employed lawyers to protect her in this trouble and that is where the money...