State v. Bunton

• Decision Date: 28 May 1926
• Docket Number: No. 26893.,26893.
• Parties: STATE v. BUNTON.
• Court: Missouri Supreme Court

285 S.W. 97

STATE v. BUNTON.

No. 26893.

Supreme Court of Missouri, Division No. 2.

May 28, 1926.

Appeal from Circuit Court, Andrew County; Thomas B. Buckner, Special Judge.

E. A. Bunton was convicted of larceny, and he appeals. Affirmed.

See, also, 280 S. W. 1040.

S. K. Owen, of St. Joseph, K. D. Cross, of Savannah, and Eastin & McNeely, of St. Joseph, for appellant.

North T. Gentry, Atty. Gen., and James A. Potter, Asst. Atty. Gen., for the State.

WALKER, P. J.

In February, 1923, the defendant was indicted by the grand jury of De Kalb county for larceny and embezzlement. The charge was in two different counts of the same indictment. He took a change of venue to Andrew county, and was there tried in November, 1924, his trial resulting in a conviction for the larceny, and an assessment of three years imprisonment in the penitentiary and an acquittal of the embezzlement. He was president of the Exchange Bank at Maysville, De Kalb county, from the year 1911 to January, 1923, when the bank failed. Susan Duncan had been cashier of the bank for several years prior to and at the time the transaction occurred out of which this prosecution arose.

On March 19, 1919, A. C. Redmond borrowed $3,000 from A. J. Hitt; Redmond giving his note therefor secured by a mortgage on land in De Kalb county. Prior to making the loan, Hitt had arranged to dispose of the note to Finley McClure, the agent of the latter's sister, Alice Roloson. As soon as the loan was made, Hitt transferred the note to Alice Roloson. About March 20, 1919, Finley McClure, as the agent of Alice Roloson, took the note and mortgage to the Exchange Bank of De Kalb county, and left it there for safe-keeping. He testified that he took the note to the bank, presented it at the window, and left it there for safe-keeping and the convenience of the maker when he wanted to pay the interest; that he left the note with one of the employees of the bank, who was at the window. He did not recall that the defendant was present at the time, and did not remember to which employee he delivered the note.

Susan Duncan testified that she did not know the note was in the bank until June 18, 1921. McClure's cross-examination authorizes the conclusion that he left the note with Susan Duncan, but he did not positively so testify.

On June 18, 1921, the defendant, who had evidently learned that the note had been deposited in the bank, told Susan Duncan to give his account credit for the amount of it, namely, $3,000. On that date she made a deposit slip for $3,060 as representing the principal of the Redmond note, and placed it to the credit of the defendant, who was at the time overdrawn in the bank, and the defendant later checked out the $3,000. At the time defendant gave Miss Duncan this direction (June 18, 1921), she placed the Redmond note in the bank's note case as a part of its assets. The bank note register shows that the note was entered as a bank asset on June 8, 1921; but, in the light of all of the other evidence, including exhibits from the bank records, the date of June 8th is evidently an error.

December 29, 1921, Redmond, the maker of the note, made a payment of $300 thereon to Hitt, who turned it over to McClure, Alice Roloson's agent, and the latter took the $300 to the bank, and requested Susan Duncan to enter a credit upon the note for that amount, and to deposit the money to the credit of Alice Roloson. The defendant was not in the bank at the time. When he came in, soon afterwards, Miss Duncan called his attention to the fact that $300 had been left there to apply as a credit on the Redmond note, and that she was instructed to place that amount to the credit of Mrs. Roloson rather than to the bank, which, at the time, from the entries made under the defendant's directions, appeared to own the note. The defendant remarked that that was all right, and that he had an understanding with Mr. McClure in regard to it. The $300 payment was then credited to Mrs. Roloson, and a check for that amount was drawn on the account of the defendant, payable to the bank to make the "bank books balance."

On the 16th of December, 1922, a depositor in the bank, named Wm. Wolff, became uneasy about his account, and went to the bank, and requested some notes " or securities to satisfy the amount the bank owed him. R. E. Shelby, who was then cashier (having succeeded Miss Duncan in September, 1922), informed the defendant of Wolff's state of mind, and told the defendant he had better talk to him. The defendant and Wolff held a conversation of some length in the back room of the bank, immediately following which the defendant went to the front of the bank, procured two notes, one of which was the Redmond note, had the interest calculated on both, and delivered them to Wolff in satisfaction of the amount due to him by the bank. The amount of the two notes aggregated about $9,300, which was ample to cover the bank's indebtedness to Wolff. The defendant indorsed the Redmond note in two places. One of these indorsements was made at the time the note was transferred to Wolff; the other was probably made prior thereto but this is not definitely shown by the evidence.

There was no evidence that the bank had theretofore accepted notes or securities for safe-keeping, or that it had authorized its employees so to do. Nor was there any express testimony that it had authorized such an acceptance of the note in this instance, but all of the facts and circumstances so indicated.

The defendant offered several character witnesses and his own testimony. He testified that he did not receive the Redmond note; did not know it was in the bank until after the bank closed; that he had never spoken to Miss Duncan about it, as testified by her as of June 18, 1921; that he had no knowledge of the deposit of $3,000 to the credit of his account on that date, which she had testified represented the proceeds of the Redmond note; that he did not know of the alleged payment of $300 on the Redmond note in December, 1921; that he did not have any conversation with Susan Duncan on that date with reference to the note, nor had he given her authority to check on his account for $300 to make the bank books balance, as testified to by her. He further denied that on December 16, 1922, he procured the Redmond note from the bank's assets, or that he calculated the interest thereon, but stated to the contrary that the deal with Wolff was really made by R. D. Shelby, the cashier, who calculated the interest thereon and handed the notes to defendant for delivery to Wolff. The defendant further testified that he did not examine the notes particularly; did not know anything about them, but assumed that they were the bank's property, and merely acted as an intermediary between Shelby and Wolff.

Defendant makes several assignments of error, but his principal contention is that he may have been guilty of embezzlement, but that he is not guilty of larceny, and, since the jury found him not guilty of embezzlement, the case must be reversed because the evidence does not justify his conviction for larceny.

I. It is not with the habit or custom of the bank in regard to the acceptance by it of notes find other instruments of value for safe-keeping, with which we are concerned, but the facts as applicable to this case. Aside from the denial by the defendant, all of the witnesses, except those introduced to prove the defendant's character, testified either to the fact that the note was left at the bank for the purpose stated by the agent of the owner or to other facts tending to prove the verity of the agent's statement in that regard.

Whatever legal relation was created by that act was between the owner and the bank. If it was a bailment, it follows that the owner was the bailor and the bank the bailee. If the note was placed in the bank solely for safe-keeping, concerning the truth of which there is no contradictory statement, except that of the defendant, the relation created was that of a naked bailment, or one in which the note was to be kept by the bank for the owner without recompense therefor. 3 R. C. L. § 10, p. 80, and notes. The owner or her agent in thus depositing the note did not part with the legal possession or the right to the control and disposition of the same, and she or her agent by such act conferred no power upon the bank other than that of a custodian. As such, the bank's authority was limited to that of safe-keeping. State v. Mintz, 189 Mo. 268, 88 S. W. 12; Loan & Tr. Co. v. Surety Co., 285 Mo....