State v. Brown

• Decision Date: 03 February 1903
• Citation: 71 S.W. 1031,171 Mo. 477
• Parties: STATE v. BROWN.
• Court: Missouri Supreme Court

71 S.W. 1031

171 Mo. 477

STATE v. BROWN.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

EMBEZZLEMENT—CONTRACTS—INTERPRETATION —PRINCIPAL AND AGENT.

1. In a prosecution for embezzlement it appeared that prosecuting witness wired defendant to buy him 1,000 barrels of pork. Defendant wrote back, saying, "We executed your order as per inclosed contract." The inclosed contract stated, "You have this day bought from us at regular commission, less than the prices named in this memorandum, 1,000 barrels of pork at $16.05 a barrel," and was signed by defendant. Held, that the relation between prosecuting witness and defendant was that of buyer and seller, and not of principal and agent, so that defendant's appropriation of an amount deposited with him as margins was not embezzlement.

2. In a prosecution for embezzlement the interpretation of a written contract, relied on by the state as establishing the relation of principal and agent between defendant and prosecuting witness, was for the court.

Appeal from criminal court, Jackson county; Jno. W. Wofford, Judge.

J. L. Brown was convicted of embezzlement, and appeals. Reversed.

J. A. McLane and W. F. Riggs, for appellant. E. C. Crow, Atty. Gen., H. S. Hadley, Pros. Atty., and Chas. E. Burnham, Asst. Pros. Atty., for the State.

FOX, J.

On May 5, 1902, H. S. Hadley, prosecuting attorney of Jackson county, filed in the criminal court of Jackson county at Kansas City an information based upon section 1912, Rev. St. 1899, as follows: "Information. State of Missouri, County of Jackson, ss.: In the Criminal Court of Jackson County, Missouri, at Kansas City, Missouri, April Term, A. D. 1902. Now comes Herbert S. Hadley, prosecuting attorney for the state of Missouri, in and for the body of the county of Jackson, and upon his official oath informs the court, that J. L. Brown, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 7th day of February, 1902, at the county of Jackson, state aforesaid, being then and there the agent, clerk, collector and servant of Eugene F. Hardwick, a private person, the said J. L. Brown (not being then and there a person under the age of sixteen years), then and there by virtue of such employment and office of agent, clerk, collector and servant, as aforesaid, did have, receive and take into his possession and under his care and control certain money to the amount of one thousand dollars, then and there lawful money of the United States, but the description of which said money is to the said prosecuting attorney unknown, and which said money was then and there of the value of one thousand dollars, and then and there was the money and personal property of the said Eugene F. Hardwick, a private person, as aforesaid, the employer of him, the said J. L. Brown, and that the said J. L. Brown the said money then and there unlawfully, feloniously, fraudulently and intentionally did embezzle and convert to his own use, without the assent of the said Eugene F. Hardwick, a private person, as aforesaid, the owner of said money, and with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the said Eugene F. Hardwick, a private person, as aforesaid, of the use thereof; against the peace and dignity of the state. Herbert S. Hadley, Prosecuting Attorney." Appellant was put upon his trial, which resulted in a verdict of guilty, and his punishment assessed at imprisonment in the penitentiary for five years. Motions for new trial and in arrest of judgment were filed in due time, both of which were by the court overruled, and this case reaches here by appeal.

It will be observed that one of the essential elements of the offense as charged in this information is that defendant must occupy the relation of agent, clerk, collector, or servant of Eugene F. Hardwick. In other words, "in order to constitute embezzlement, as charged in the information, the accused must occupy the designated fiduciary relation, and the money must belong to his principal, and come to the possession of the accused by virtue of that relation." Griffin v. State, 4 Tex. App. 390. The overshadowing question in this case is as to the existence of the relation of principal and agent between the prosecuting witness, Hardwick, and the defendant, J. L. Brown. If the contention of appellant is to be sustained that the testimony shows that no such relation existed, then this controversy is at an end, and would render it absolutely unnecessary to burden this opinion with a discussion of the numerous other errors complained of. To reach a clear understanding of this most vital question involved in this case, it will be necessary to note the testimony offered by the state to support the essential charge in the information "that defendant was in this transaction acting as the agent of Hardwick." It appears from the testimony that J. L. Brown & Co. were doing business in Kansas City, Mo. On February 7, 1902, E. F. Hardwick, the prosecuting witness in this case, sent the following telegram to J. L. Brown & Co.: "Alva, Okla., 2-7, 1902. J. L. Brown & Co., 554 Gibralter Bldg., K. C., Mo.: Buy me one thousand bbl. July pork. Will have Exchange Natl. Bank wire you the money. E. F. Hardwick." On the same day the Exchange National Bank of Alva, Okl., at Mr. Hardwick's direction, wired defendant that it would pay his (defendant's) draft on E. F. Hardwick for $1,000. On the same day the defendant drew a draft on said Hardwick for $1,000, and attaching the telegram from the bank, deposited the same to his credit in Traders' Bank of Kansas City, Mo. This draft was duly paid February 10th by the Oklahoma bank out of Hardwick's account and to the defendant's account in the Traders' Bank of Kansas City, Mo. On the 7th day of February, after deposit of said draft, etc., defendant wrote to Mr. Hardwick the following letter: "J. L. Brown & Co. Grain, Provisions, Stocks and Bonds, Municipal and Investment Securities. Gibralter Building, Kansas City, Mo., Feb. 7, 1902. Mr. E. F. Hardwick, Alva, Okla.— Dear Sir: We have your telegram to buy 1,000 barrels Chgo. July pork, and on receipt of telegram from bank we executed your order for same as per inclosed contract. We thank you very much for the order, and hope that the results of same will be such as to insure further orders from you. Yours very truly [Signed] J. L. Brown." The contract mentioned as inclosed is as follows: "J. L. Brown. Grain, Provisions and Stocks. Gibralter Building, Kansas City, Mo., 2-7-02. Mr. E. F. Hardwick: You have this day bought from us at regular commission, less than the prices named in this memo., one thousand (1,000) barrels Chicago pork, at $16.05 per bbl., for delivery in July. Margins deposited with us, $1,000. Notice: All contracts made with us for the purchase or sale of grain, provisions, and stocks made with us or through us are subject to the rules and regulations of the board of trade or stock exchange in the city where delivery is to be made, and we hereby agree to receive all property sold to us or through us, and to deliver all property bought from us or through us at maturity of contract, and we will not accept business under any other conditions, and the trades above recorded are made with this understanding. We also reserve the right to close any trade made with us or through us without notice, if the money in our hands is, in our judgment, insufficient to protect the trade. [Signed] J. L. Brown & Co., Per J. L. B. Original." The prosecuting witness, E. F. Hardwick, further testifies that in the same letter containing the contract was inclosed a pamphlet indorsed, "How to Speculate in Grains." On the 28th of April, 1902, Hardwick appeared at the office of J. L. Brown & Co., and his testimony at that time is as follows: "Q. Did you call on Mr. Brown? A. Yes, sir. On the 28th of April, at his office in Gibraltar Building, I introduced myself. Told him I had some deals with him, and I wanted to close them up, and he said, `All right.' And he stepped to the telephone and talked. I asked him if he had closed it out, and he said he had. I asked him, `At what?' and he said: `Seventeen twelve,—$17.12 a barrel. Come round at two o'clock and get your money.' I told him I wanted my money now. It is customary. He said other concerns had an hour or two, and he ought to have that time. I told him I wanted my money right now. I told him I would stay there until he did get the money. Q. How much did it amount to, if it closed at $17.12? A. The full amount would amount to $3,770, including the $2,000 I paid him. The rest would be the profit on the pork. Finally, he said he couldn't get the money unless he could get out. He had some friends. I told him I would be there the next day, and expect the money. I never seen anything more of him until he was arrested. Q. I show you a book, `How to Speculate in Grain, by J. L. Brown.' Did you get that book...