State v. Castleton
| Decision Date | 17 February 1914 |
| Citation | 164 S.W. 492,255 Mo. 201 |
| Parties | THE STATE v. WALTER CASTLETON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.
Reversed and remanded.
E. E Hairgrove for appellant.
John T Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
(1) The fact that the word "attorney" was interpolated into the information between the words "agent" and "collector" does not render the information defective. The term "agent," as used in Sec. 4550 R.S. 1909, includes the relation of attorney. State v. Gibhardt, 219 Mo. 708; State v. Thomson, 155 Mo. 300; State v. Cunningham, 154 Mo. 161; State v. Brown, 171 Mo. 477. (2) With reference to the proposition that the allegation in the information is the embezzlement of money and the evidence showed the embezzlement of a note, the State insists that this is a mistaken theory of this case. The power of attorney gave defendant the absolute authority to receive this note from Allen, and his subrogated interest in the note gave him the right to sell it and to pay himself out of the proceeds thereof the sum of $ 265.71, advanced by him to Allen on account of Miss Cole. The defendant, being Miss Cole's agent in thus selling the note, was vested with authority to receive the proceeds of the note, but in appropriating the money realized therefrom to his own use, he was guilty of embezzlement. State v. Bacon, 170 Mo. 162; State v. Mispagel, 207 Mo. 575. The money realized by defendant from the sale of this note belonged to the prosecuting witness, Ellen Cole, and she was entitled to the possession of it after the $ 265.71 due from her to defendant was deducted. When the defendant appropriated it to his own use without Miss Cole's consent he was guilty of embezzlement.
Charged with and convicted of embezzling $ 2948.75 as the agent, attorney, collector and servant of one Ellen Cole, defendant appeals from a judgment fixing his punishment at four years in the penitentiary. At the date of the alleged crime defendant was an attorney of Kansas City, Missouri, and Miss Ellen Cole, the prosecutrix, a spinster of the same city. She will hereafter be designated as the prosecutrix.
On December 27, 1910, prosecutrix employed defendant to collect a note of $ 140 executed by one Ridgeway, and paid defendant $ 10 for his contemplated service in that behalf. The Ridgeway note, together with two other notes, one for $ 100 and the other for $ 3350, were, at that time, in the hands of one George R. Allen, her former attorney, who was then in Topeka, Kansas.
These notes had not been indorsed to Allen, but he claimed that prosecutrix owed him $ 265.71, and demanded that his claim be paid before surrendering possession of the notes. The defendant paid to Allen the amount of his claim against prosecutrix. She seems to have understood this payment or advancement as a loan to her.
On January 30, 1911, she gave the defendant the following power of attorney, or order to Allen, her former attorney:
The note for $ 3350 was secured by deed of trust on real estate situated in the State of Kansas, and forms the basis of this litigation. The two smaller notes may be dropped from further consideration. It will be observed that the $ 3350 note is not specifically named in the above quoted order or power of attorney which prosecutrix signed authorizing defendant to receive "all papers, negotiable instruments or other documents" held by Allen. Prosecutrix contends that at the time she signed the order to Allen, her former attorney, she did not know that the $ 3350 note was in his possession, and that she did not intend to deliver that note to defendant. When asked if she at any time turned the $ 3350 note over to defendant, or authorized him to get it, she replied: "No, sir, I can raise my hand up to God and tell you I never did, and that is saying a good deal." Defendant testified that at the time the order to Allen was signed by prosecutrix (on January 30, 1911), he made a trade with her whereby he became the owner of the $ 3350 note -- that he traded her 15,000 shares of stock in an electric power company, and gave her his individual note for $ 300 in consideration of her $ 3350 note, and that also, as a part of the consideration of that trade, he agreed to pay her five per cent interest on $ 3350 until her stock in the power company should become worth $ 5000.
On February 6, 1911, defendant forwarded to Allen the order or power of attorney, hereinbefore set out, together with a check for $ 265.71, accompanied by the following letter:
In response to the foregoing letter, and the order therein inclosed, Mr. Allen forwarded to defendant all the papers of prosecutrix held by him, including the note for $ 3350.
Defendant testified that a few days after this note was received he presented it to prosecutrix and she indorsed and transferred it to him by signing her name on the back thereof, and that the land by which the note was secured being situated in Kansas, where an assignment of the deed of trust was necessary to make the transfer of the note effectual, prosecutrix duly signed and acknowledged a transfer of the deed of trust.
Prosecutrix testifies that she did not purchase any stock of defendant; that she did not sell or trade the $ 3350 note to him; and that she did not indorse her name on the note, or sign or acknowledge the transfer of the deed of trust given to secure the note.
There was evidence tending to corroborate both the prosecutrix and defendant at all points where their evidence conflicts. The conclusions we have reached render it unnecessary to set out all of such evidence in this opinion.
The following facts are undisputed:
That the note for $ 3350 was not indorsed by the prosecutrix when defendant received it into his possession; that on February 27, 1911, defendant borrowed $ 500 from a bank in Kansas City, giving the $ 3350 note originally owned by prosecutrix as security for said loan; that a few months later he borrowed $ 1500 from another bank in the same city, again using the same collateral as security; and that in May, 1912, the defendant sold the $ 3350 note outright for $ 2950, and that he appropriated the proceeds of the sale to his own use. Defendant, further testifying in his own behalf, stated that in hypothecating the $ 3350 note and in selling it he was not representing the prosecutrix as agent, attorney, collector or servant, but was acting solely for himself as the owner of said note.
Such further facts as are necessary to an understanding of the issues to be determined by us will be noted in our opinion.
Among the grounds urged for reversal are: (1) insertion of the word attorney in the information, when said word does not appear in section 4550, Revised Statutes 1909, upon which this prosecution is based; (2) the admission of improper evidence; and (3) that the verdict is contrary to the evidence.
OPINION.I. As we have concluded that the judgment must be reversed for reasons expressed in another paragraph of this opinion, we will consider only such assignments of error as may point the way to a correct retrial of the cause.
The insistence that defendant was prejudiced by charging him with the crime of embezzlement as an "attorney" we are constrained to treat as frivolous. The word attorney is not found in that section of the statute under which defendant was prosecuted, but its insertion did not mislead defendant to his prejudice. [Section 5115, R.S. 1909.] The evidence could have been, and probably would have been, the same with the word attorney omitted as it was with that word unnecessarily added. The contention, ore tenus, that the public press of Kansas City has abused and maligned attorneys as a class until juries of that locality believe that attorneys generally are dishonest, is a matter of which we cannot take judicial notice -- not yet, at least. There was one prominent attorney of Jackson county who recently tried to resign the position of attorney to this court, but we are not aware that he did so because attorneys in his county...
To continue reading
Request your trial