State v. Bittinger

• Decision Date: 28 February 1874
• Citation: 55 Mo. 596
• Parties: STATE OF MISSOURI, Appellant, v. JOHN L. BITTINGER, Respondent.
• Court: Missouri Supreme Court

55 Mo. 596

STATE OF MISSOURI, Appellant,

v.JOHN L. BITTINGER, Respondent.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Circuit Court.

James P. Thomas, for Appellant.

I. It is not necessary that the indictment should aver that the Asylum had been permanently located at or near Saint Joseph, Missouri. The location cannot affect either the ownership of the warrant or the money, prior to its delivery to the commissioners, nor the guilt or innocence of respondent. The conversion of the $15,000.00, to his use, and the making away with and secreting the money, constituted a felony under § 41, p. 459-60, Wagn. Stat., at all events.

Hall & Oliver, and Chandler & Sherman, for Respondent.

1. The money came into respondent's hands, if at all, under the act of March 28th; and the punishment for violation of that law is provided under § 25 of the act.

The order of the County Court directs payment to the commissioners, “when the Asylum is located at St. Joseph” and not before. The indictment fails to charge that the institution is so located.WAGNER, Judge, delivered the opinion of the court.

The defendant was indicted under the 41st section of the statute (1 Wagn. Stat., p. 459, § 41), for embezzlement in converting to his own use, making way with and secreting money belonging to the County of Buchanan to the amount of fifteen thousand dollars. The indictment contained two counts. The first charged that on the 25th day of May, 1872, defendant was appointed, employed, and acting as agent and commissioner of Buchanan county; that said appointment, was made by an order of the County Court entered of record, by virtue of an act of the General Assembly of the State of Missouri, entitled an act to establish an Insane Asylum in the north-west or south-west portion of the State, to be called the North-western or South-western Insane Asylum, approved March, 1872; that by virtue of the above mentioned act, the County Court of Buchanan county donated to the commissioners of the said Asylum, the sum of fiteen thousand dollars, to be paid to said commissioners, as soon as the said Asylum should be located at or near St. Joseph, Missouri; that said County Court issued a warrant, duly signed by the presiding justice thereof, for the said fifteen thousand dollars, payable to defendant or his order; that said warrant was of the value of fifteen thousand dollars, and was by the said County Court delivered to the defendant for safe keeping, and for transfer to the commissioners of said Asylum as soon as the same should be permanently located at or near St. Joseph, Missouri, and was received by the defendant for the purpose aforesaid; that defendant on the 25th day of May, 1872, having the said warrant in his possession for the purposes aforesaid, unlawfully, fraudulently and feloniously converted the same to his own use, made way with and secreted the same. The second count substantially set out the charges the same as in the first, and alleged, in addition thereto, that defendant unlawfully, fraudulently, and feloniously, converted to his own use, made way with and secreted fifteen thousand dollars of the public money, &c. To this indictment the defendant by his counsel filed a demurrer which was sustained by the court, and final judgment having been entered thereon, the State appealed.

The argument made in reference to the constitutionality of the act, so far as it gives County Courts power to make donations to the Asylum, has failed to convince us of its soundness. We see nothing in the act of a character which would justify us in holding it unconstitutional in that respect. The only question then, is whether the indictment was properly drawn on the 41st section above referred to. That section is the general law, and provides for all the usual and ordinary offenses coming within its purview and description.

By the 7th section of the law establishing the North-western or South-western Insane Asylum, it is provided as follows: “The commissioners are hereby authorized to receive for the institution gifts, grants, donations and bequests of any property or money from persons, counties, cities, towns or townships in aid of said institution, the title to which, shall be made to and vested in the State, for the use of the Asylum; and the County Court of any county, or corporate authority of any town or city in this State, is hereby authorized to donate any lands, money, bonds or other property to said institution, and the conveyance of any real estate and donation of money, bonds or property to the State for the use and benefit of said Asylum, shall be valid and binding upon the persons, authorities or corporations making the same.” (1 Wagn. Stat., p. 170 b. § 7, 3 d. Ed.) The 25th section of the same act, declares: “Any person who shall, after demand made, knowingly refuse to pay over or deliver to the commissioners or managers of said Asylum, any money, property or thing belonging thereto, or any person who shall knowingly convert to his own use any money appropriated by law, or any money or property...