State v. Burks

• Decision Date: 12 February 1901
• Parties: STATE v. BURKS.
• Court: Missouri Supreme Court

60 S.W. 1100

159 Mo. 568

STATE v. BURKS.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

EMBEZZLEMENT — INDICTMENT — SUFFICIENCY — DESCRIPTION OF INSTRUMENT — CONVICTION OF LARCENY — EVIDENCE — ADMISSIBILITY.

1. Where the evidence on the trial of an indictment for embezzlement of a check showed that the person owning the check and the person from whom he got it did not know to whom it was payable, or on whom it was drawn, the indictment is not bad in failing to state such facts, since they could not be determined by the grand jury.

2. An indictment for the embezzlement of a check, which fails to state in whose favor or on whom it was drawn, is not cured by the mere statement therein that a more particular description is not known to the grand jury.

3. An indictment for embezzling a check is not bad in failing to state from whom the defendant received the check.

4. Under Rev. St. 1899, § 2528, providing that an indictment for embezzling an instrument shall be sufficient if it describes the instrument by its usual name, without setting out a copy thereof, an indictment charging the embezzlement of a check is sufficient, though it fails to state in whose favor or on whom the check was drawn.

5. Where an indictment charges embezzlement, the defendant cannot be convicted of grand larceny, though Rev. St. 1889, § 3551, provides that a person guilty of embezzlement may be convicted of larceny, since Const. art. 2, § 22, entitles the accused to know the nature of the accusation against him, and the crime of larceny differs from that of embezzlement.

6. Where the act of the defendant in a prosecution for the embezzlement of a check makes it impossible for the state to produce the check, parol evidence in relation thereto is not inadmissible as a violation of the best evidence rule.

Appeal from circuit court, Pulaski county; L. B. Woodside, Judge.

Charles Burks was convicted of grand larceny, and he appeals. Reversed.

Murphy & Murphy, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

Defendant was convicted in the circuit court of Pulaski county of grand larceny, and his punishment fixed at two years' imprisonment in the penitentiary, under an indictment charging him with embezzling a check of the alleged value of $35, the property of one Louis Fisher. After unavailing motions for new trial and in arrest, defendant appeals.

The facts are that on or about the 8th or 9th day of August, 1899, one Louis Fisher was the owner and in the possession of a check for $35, and while at the town of Crocker, in Pulaski county, on that day, he handed the check to defendant to pay his (defendant's) father for some oil for which Samuel Jasper, from whom Fisher got the check, owed him, and to return the change to him (Fisher). Defendant never returned the check, nor did he pay his father for the oil, or pay Fisher the money for the check, but he took it to a man by the name of Hoops, who, not having the change, gave him two $20 bills, and took the check with the understanding that defendant would get one of them changed, and return the difference, being $5, between the amount of the check and the $40. Immediately after he obtained the $40, defendant boarded a freight train, and went to Dixon, another town, a short distance away. One H. C. Murphy, a short time afterwards, while in search for defendant, boarded a freight train about two miles east of Dixon. He found defendant on an oil car, and arrested him. He took him to Newburg, and returned on the next train to Crocker. Defendant was searched, and $13 were found in his possession. He admitted throwing $27 away while on the train, just before the arrest was made. It was not shown by whom or upon what person or bank the check was drawn. The point is made that the indictment does not charge ...