State v. Betz

Decision Date10 December 1907
Citation207 Mo. 589,106 S.W. 64
PartiesSTATE v. BETZ.
CourtMissouri Supreme Court

Appeal from Circuit Court, Gentry County; William C. Ellison, Judge.

Jacob L. Betz was convicted of embezzlement as a bailee, and appeals. Affirmed.

J. W. Peery, for appellant. The Attorney General and N. T. Gentry, for the State.


This is an appeal from a conviction of the defendant in the circuit court of Gentry county for embezzlement as a bailee, under section 1914, Rev. St. 1899 [Ann. St. 1906, p. 1306]. The indictment contained three counts; the first charging embezzlement under said section, being the one upon which defendant was convicted, and the second also attempting to charge embezzlement under both sections 1912 and 1914 [pages 1304, 1306]; and the third count charging grand larceny. The second count was, upon motion quashed, and after the trial was entered into a nolle prosequi was entered as to both the second and third counts, and the cause was submitted to the jury on the first count alone.

The evidence showed that defendant was a retail jewelry merchant in the city of Stanberry, in said county, and had been dealing with and buying jewelry and diamonds from the C. B. Norton Jewelry Company, of Kansas City, for six or seven years. On January 4, 1905, defendant wrote to this company the following letter or order:

                        "J. L. Betz, Jeweler and Optician
                                      "Stanberry, Mo. 1-4-05
                   "C. B. Norton Jewelry Co., Kansas City
                Mo.—Dear Sir: Please send me by exp. on
                memo. one or two nice diamonds, 1 to 1¼ kt
                and oblige,          Yours very truly,
                                                 "J. L. Betz."

In response to said order the company sent to defendant by express the four diamonds described in the indictment, together with the following bill:

                "C. B. Norton, Pres. and Treas. H. N. Norton,
                     Vice Pres. W. M. Lewis, Sec.
                              "Established 1873.

"Bills not paid at Goods sent by mail maturity subject to only by special request sight draft. and at risk of party

Particular attention ordering. paid to filling orders.

"Consigned on memorandum by C. B. Norton Jewelry Company, Jobbers of Diamonds, Watches, Jewelry, Clocks, Silverware, Tools, Materials, and Optical Goods.

                "1013 and 1015 Grand Ave.
                         "Bell and Home Tel., 2073 Main.
                              "Kansas City, Mo. 1-6-'05.

"J. L. Betz: The goods described below are sent at your risk for examination and selection, but none are considered sold, nor does the title pass, until a regular bill of sale has been sent you. Please make returns within ____ days of their receipt.

                "1 Dia.   5252 1¼     1/64C   135.00   170.86
                 1 Dia.   5819 11/16         1/64C   138.00   148.78
                 1 Dia.   3550 11/8C                 125.00   140.63
                 1 Dia.   3503 11/12         1/16C   140.00   218.75"

Upon cross-examination the president of the company testified as follows: "Q. Mr. Norton, I believe you stated awhile ago that defendant's exhibit No. 1 is the bill which you sent to defendant with the shipment of this lot of diamonds? A. Yes, sir. Q. And how long had you been doing business with the defendant? A. Probably six or seven years. Q. You commenced doing business with him and selling him goods when he was at Maitland, did you not? A. Yes, sir. Q. And continued there and after he moved to Stanberry. A. Yes, sir. Q. How many goods did you sell him during those years—approximately? Few or many bills? A. Why, we sold him a good many goods. Q. The prices named in this bill, to wit, $170.86; $148.78; $140.63, and $218.75, were the wholesale prices of these diamonds? A. Yes, sir. Q. And you said in answer to the court's question that the title to these diamonds were to remain in you until he made his selection? A. Until they were reported on. Q. Until he made his selection, is what you said, is it not? A. It reads in there just exactly what it is. Q. Then this printed matter here in this bill head constitutes the only agreement or arrangement you had with Mr. Betz? A. Yes, sir. By the Court: You mean arrangement or agreement under which the goods were shipped to him? A. Under which the goods were shipped to him. The letter says `memorandum,' just exactly as the bill says. Q. Mr. Norton, you had many times, in the six or seven years intervening before the sending to Mr. Betz of this bill, sent him goods on like bills, had you not? A. Yes, sir. Q. And he would either return the goods to you or pay for them? A. Yes, sir; yes, sir. Q. And that course of dealing has existed for six or seven years? A. Why, yes, sir. Q. And if you had received from Mr. Betz a draft for six hundred odd dollars—whatever it is—for these diamonds, he would have been within his rights, under your arrangement and dealing with him, would he not? By Mr. Showen, counsel for plaintiff: Wait a minute. If the court please, we object to that for the reason that, if Mr. Peery is going to stand on his bill of sale here, as he starts out, it certainly is not competent to show some other arrangement, if that is his defense. By the Court: Well, I don't know about that. Go ahead. Q. That is true, isn't it, Mr. Norton? A. Yes, sir. We would have given a regular bill for it then. Q. You would have taken the money, and they would have been his goods? A. Yes, sir; and sent him a regular bill for the goods. Q. They would have been his goods? A. They certainly would. Q. In other words, he had the option of returning the goods to or paying for them? A. He had the option to return the goods or pay for them. He certainly did; yes, sir."

The defendant admitted upon the trial that he appropriated the goods mentioned in Exhibit No. 1 and described in the indictment to his own use. Shortly after receiving the diamonds, he sold stock of jewelry in Stanberry, and went to Lincoln, Neb. The diamonds in question were pawned by him in that city, together with other diamonds of the value of $1,500 or $1,800. The defendant was arrested in Lincoln, and state's witnesses, Norton and Solon, visited him in jail at that city, and had a conversation with him. They asked defendant why he had done that way, and he replied: "I can't tell you why I done this. I don't understand why I did the way I did. You have always treated me all right, and I had no need to have used you in this way."

At the close of the state's case, the defendant asked a peremptory instruction directing the jury to acquit the defendant, which was refused, and exceptions duly saved. The defendant offered no evidence, and made five requests to the court for instructions on certain propositions, the substance which was that, under the law and the evidence, the transaction between the C. B. Norton Jewelry Company and the defendant was a conditional sale or "sale or return" and not a bailment, and that defendant could not therefore be convicted as a bailee under section 1914 (page 1306). These requests were refused by the court, and the defendant excepted. Thereupon the court instructed the jury, in substance, that under the letter or order and bill hereinbefore set out the defendant became a bailee of the company "as to all but two of said diamonds," and if he converted them he was guilty under the first count of the indictment. The defendant excepted to each of the instructions given by the court, because the court had failed to instruct on all questions of law arising in the case necessary for the information of the jury in making up their verdict. Under the instructions the jury found the defendant guilty of embezzlement as a bailee under the first count of the indictment, and assessed his punishment at two years'...

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18 cases
  • Watson v. J. R. Watkins Co
    • United States
    • Mississippi Supreme Court
    • February 26, 1940
    ...return goods to the company does not affect the character of the transaction. Koch Veg. Tea Co. v. Malone (Tex.), 163 S.W. 663; State v. Betz (Mo.), 106 S.W. 64; Sinnett v. R. Watkins Co. (Ky.), 282 S.W. 769; Equitable Credit Co., Inc. v. Rogers (Ark.), 299 S.W. 747. The designation of the ......
  • Lee v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 27, 1916
    ...Cyc. p. 254; also pages 289, 290, of the same volume; Bank v. Kraus, 62 Neb. 77, 86 N. W. 906; Hunt v. Wyman, 100 Mass. 198; State v. Betz, 207 Mo. 589, 106 S. W. 64. From the opinion in the last-named case appellant in his brief quotes as "The general proposition that a delivery of an arti......
  • State v. Bagley
    • United States
    • Missouri Supreme Court
    • August 20, 1936
    ...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 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 ......
  • State v. Ruznak
    • United States
    • Missouri Court of Appeals
    • April 2, 1929
    ...person who delivered it, or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be." In State v. Betz, 207 Mo. 589, loc. cit. 599, 106 S. W. 66, the court adopts Judge Story's definition of bailment, as follows: "The delivery of a thing in trust f......
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