State v. Burgess
| Decision Date | 16 March 1917 |
| Docket Number | No. 19389.,19389. |
| Citation | 193 S.W. 821 |
| Parties | STATE v. BURGESS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.
W. J. Burgess was convicted of embezzlement, and appeals. Affirmed.
See, also, 268 Mo. 407, 188 S. W. 135.
Ward & Collins, of Caruthersville, for appellant. John T. Barker, Atty. Gen. (Kenneth C. Sears, Asst. Atty. Gen., of counsel), for the State.
Defendant was convicted of embezzlement in the circuit court of Pemiscot county, and his punishment assessed at three years' imprisonment in the penitentiary. From this judgment he appeals.
The information was in five counts, the first charging grand larceny, the second embezzlement as an agent, the third taking and secreting with intent to embezzle, the fourth embezzling as bailee, and the fifth taking and secreting with intent to embezzle as a bailee. The conviction was had under the second count, in which it was charged that on March 28, 1913, as the agent of Susan Hayden, defendant embezzled and converted to his own use money belonging to her in the sum of $300. This money, as disclosed by the testimony, was delivered to defendant not as a loan, but for defendant to put same "in a place in St. Louis where it would draw 10 per cent. interest." Some time after the money was delivered to the defendant he exhibited to Mrs. Hayden a paper typewritten, except as to the signatures, as follows:
On the back:
After showing Mrs. Hayden the paper he retained it until a few months before the beginning of this prosecution, when, upon her demand, it was turned over to her. She testified she was a widow, and that the money defendant was charged with embezzling, together with other funds belonging to her, had been intrusted to his keeping that she might obtain 10 per cent. interest thereon, that this money had been received by her as a part of the insurance on her husband's life.
Defendant testified that none of the money received by him from Mrs. Hayden was borrowed; that he handled it for her at her request; that he delivered the money to a Mr. Wright as secretary of the "Tri-Mutual Association"; that Wright and Givens were the men who ran that business, and were the only ones he knew; that he had tried to find them, but had failed; that these people got all of Mrs. Hayden's money; that the Tri-Mutual Association was a private concern, whether incorporated or not he did not know, doing a townsite business. He did not know where the office of this concern or of these men was in the city of St. Louis; that they were usually around the Moser Hotel; that he had never visited their office; that he delivered the money to Wright in his (defendant's), office in Caruthersville; that he did not know either Wright's or Givens' St. Louis address; that they spent most of their time out of town; that he paid Mrs. Hayden her interest on the money as it became due; that she saw and indorsed a check for this interest from these people; that the check was on the Jefferson Bank, signed by the Tri-Mutual Association; he did not know how many interest checks he had received; that practically all of the interest was paid to him in cash.
Counsel for the state testified that he had failed after diligent search to find any organization or business concern named the Tri-Mutual Association or any individuals named Wright and Givens engaged in a business of this name and character in the city of St. Louis. He was permitted to detail the methods employed in this search, among others that he went to the commercial agencies of Bradstreet and Dun and found no trace of the association or the individuals in question.
I. Application for Continuance. — When the case was called for trial defendant applied for a continuance on the ground of the absence of Wright and Givens, alleging therein that he would be able to prove by them if present that he had loaned Mrs. Hayden's money to them, together with various sums of his own. His application stated that he was informed that said absent witnesses were in southwestern Texas conducting a townsite sale, and that he had used every possible effort to secure their presence, but had not been able to do so. This was followed by the usual allegations required by statute to be made in an application of this nature
The information on which this prosecution was based was filed June 24, 1915. Defendant's trial did not commence until July 26, 1915. So far as the record discloses, there was nothing to prevent defendant from ascertaining the whereabouts of the alleged absent witnesses, if they existed, and of procuring their attendance during the period of more than 30 days that elapsed between the filing of the information and the beginning of the trial. The allegations as to the efforts made by the defendant to locate and procure the attendance of these witnesses are general and indefinite, and from their tenor do not impress us as being genuine. It is reasonable to conclude that they had a like effect upon the mind of the trial court. On its face this application is absurd and consequently unbelievable. Let an outline of its import suffice to attest the truth of this assertion.
Two men are alleged to have been engaged in a business in the city of St. Louis under the name of the Tri-Mutual Association, and had, with the knowledge of the defendant, been so engaged for four or five years. Defendant had loaned them money, not only for Mrs. Hayden, but on his own account; but, notwithstanding this course of business dealing, he had never been in their office, did not know where it was located, nor did he know their business or residential addresses, either at the time of the making of the application for a continuance or prior thereto. He had tried, when, he does not say, to locate them, and had learned while in St. Louis hunting them, from whom he fails to say, that they were in Southwestern Texas conducting a townsite sale, and would be absent from 60 to 90 days. Upon statements of this character and others of like nature woven together in a manner to conform to the formal requirements of the statute, the defendant sought that not infrequent refuge of the accused, to wit, a continuance. An application for a continuance is always addressed to the sound discretion of the trial court, and will not be interfered with, unless it is shown that its refusal prevented the defendant from having a fair trial. State v. Salts, 263 Mo. 304, 172 S. W. 373; State v. Peters, 258 Mo. 334, 167 S. W. 520; State v. Cain, 247 Mo. 700, 153 S. W. 1039. Measuring the merits of the application by its averments alone, we are of the opinion that the trial court did not abuse its discretion in refusing to grant it, and we so hold.
II. The Testimony. — It is urged that the trial court committed error in permitting the civil status of Mrs. Hayden, viz. that of widowhood, to appear in the testimony, and also the fact that the money she intrusted to the care of the defendant had been derived from the amount paid her on her husband's life insurance. It is claimed that the admission of this character of testimony tended to prejudice the minds of the jury against the defendant, evidently upon the theory that if the defendant was found guilty, a fact necessary to be first determined, that the embezzlement of a widow's money would appear more heinous than the same offense committed against another.
We find that the testimony objected to formed an incidental part of Mrs. Hayden's narration while on the witness stand of the facts leading up to the obtaining of her money by defendant. Except as its importance was exaggerated by defendant's objection thereto, this character of testimony could have had no more influence in fixing the measure of defendant's punishment after the jury had found him guilty than any other fact forming a part of her testimony. It is not necessary to enter upon a discussion as to the probable probative force or influence upon the average mind of this or that direct or incidental fact adduced in evidence in the trial of a cause. Inviting as the theme may be, we leave it to the speculations of a Bentham or the contemplative moods of a Wigmore, devoted oftentimes to a discussion as to what the rules of evidence should be rather than what they are. What we are concerned in is: Did the trial court exercise a reasonable discretion in the admission of the testimony here under review, or, otherwise expressed, did the defendant suffer prejudice by reason of the trial court's rulings?
No trial of a criminal case is free from the admission in evidence of direct or incidental facts which to the supersensitive mind of the defendant may not be construed as prejudicial. This is not necessarily true because "the thief doth fear each bush an officer," but because of the vital personal interest, whether innocent or guilty, of the accused in the result. The trial court, however, animated by no desire except the wholesome administration of justice, and the jury, qualified as impartial triers of the fact and sworn to find according to the law and the evidence, are not likely to be swayed in the performance of their duty by the admission of testimony of the character of that here under review. Hence the rule has been established that trial courts in the conduct of cases are vested with a reasonable discretion in their rulings upon testimony which will not be disturbed, unless it...
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