State v. Colson
| Decision Date | 11 June 1930 |
| Docket Number | 30177 |
| Parties | The State v. J. E. Colson, Appellant |
| Court | Missouri Supreme Court |
Appellant's Motion for Rehearing Overruled July 3, 1930.
Appeal from Chariton Circuit Court; Hon. J. E. Montgomery Judge.
Affirmed.
Roy McKittrick for appellant.
(1) There is no substantial evidence showing the defendant embezzled $ 54.50 from the funds belonging to Missouri township, on or about the 12th day of April, 1924, and the demurrer offered by the defendant at the close of the State's case should have been sustained. State v Martin, 204 S.W. 537; State v. Mispagel, 207 Mo. 557; Hanna V. Minnesota Life Ins. Co., 241 Mo. 383; Sec. 3334, R. S. 1919; State v. Davis, 292 S.W. 430. (2) There is no evidence which tends to show that the defendant embezzled $ 54.50 or any part thereof from the township funds of Missouri Township, as distinguished from money belonging to the school fund and road fund, and therefore the defendant is not guilty as charged in the information. State v. Martin, 204 S.W. 537. (3) The court erred in admitting the evidence of Young, Goll, Elliott and Crow, that in the year 1926, two years subsequent to the date of the commission of the alleged crime, the defendant's books showed a shortage. (a) Accused is not bound by entries of money received or disbursed, made in the books by other persons. 20 C. J. 485; People v. Blackman, 127 Cal. 248. (b) It was shown that all of the entries in the books were not made by the defendant or under his authority, and the witnesses should not have been permitted to testify as to what their examination disclosed. Lee v. Armour Building Co., 18 S.W.2d 105. (c) The court erred in admitting the evidence of Goll, and Young with reference to the result of their examination of the books of the defendant, as the records were the best evidence. 22 C. J. 973, 988, sec. 1236. (d) The result of the examination of the trustee's books by the witnesses was partly based on written hearsay evidence and the conclusion of the witnesses, and the court erred in admitting in evidence the result of their examination. (e) The result of the examinations of the trustee's books by the witnesses included the school districts funds, and the road districts funds, and the township fund, and was a material variance. State v. Martin, 204 S.W. 537; State v. Mispagel, 207 Mo. 557; 20 C. J. 480; 31 C. J. 843; State v. Ross, 279 S.W. 415. (f) The evidence was insufficient to show that the entries made in the trustee's books by other persons were made under the direction or with the knowledge of the defendant. 16 C. J. 743, sec. 1527. (4) The defendant had custody of three distinct and separate funds, and even though he converted the sum of $ 54.50 from all the funds, the part converted from each fund constituted separate and distinct offenses. State v. Laughlin, 180 Mo. 342, 358; 16 C. J. 586; State v. Crosswhite, 130 Mo. 358; State v. Noland, 111 Mo. 504. (5) The court in reading law to the jury and his remarks thereon, prejudiced the defendant with the jury. 16 C. J. 827. (6) In view of the allegations in the information the defendant could not possibly have anticipated that certain warrants, checks, statements and other papers would be material, and the court erred in refusing to give defendant reasonable time to examine said documents, so he could find and offer in evidence, checks and warrants that showed the defendant had paid out money for the use and benefit of the township, road and school districts that was not entered on his books. State v. Naething, 300 S.W. 829; State v. Tippet, 296 S.W. 132. (7) There was no evidence that the defendant fled soon after the commission of the crime charged in the information, and the court erred in giving the State's Instruction 5, as said instruction was not based upon evidence in the case. State v. Evans, 138 Mo. 116, 127. (8) If the evidence of Elliott and the other witnesses that testified with reference to the alleged shortage was admissible, then there was evidence that the alleged shortage in part occurred more than five years prior to the date of the filing of the information, and the court erred in refusing defendant's Instruction 14, which required the jury to find that the sum of $ 54.50 was appropriated by the defendant to his own use with intent to deprive Missouri Township of said sum, within five years prior to the 12th day of September, 1928, the date of the filing of the information.
Stratton Shartel, Attorney-General, and Carl J. Otto, Assistant Attorney-General, for respondent.
(1) There was substantial evidence to sustain the verdict, hence defendant's demurrer was properly overruled. The evidence showed that the money in defendant's custody came to him by virtue of his position as township trustee and that said funds were the property of Missouri Township. While it is true that said funds were distributable to different accounts, i. e., township, road district and school districts, nevertheless all of the money in the hands of the trustee were township moneys and in effect held in trust for these respective divisions. Evidence showing the embezzlement of any portion of these funds regardless of any particular account to which said funds might be distributable supports the charge. State v. Baker, 285 S.W. 418; State v. Hays, 78 Mo. 600; State v. Noland, 111 Mo. 490; State v. Findley, 101 Mo. 217. (2) The testimony of Young, Goll, Elliott and Crow in reference to their examinations of the defendant's books and the amounts found due to the township was properly admitted. State v. Findley, 101 Mo. 217; State v. Howell, 317 Mo. 330, 296 S.W. 370; State v. Farrar, 285 S.W. 1000; Stetina v. Bergstein, 231 S.W. 1059; Masonic Mut. Benefit Society v. Lackland, 97 Mo. 137. (a) The objection that it was not shown that all the entries were defendant's entries is untenable for the reason that the presumption is that all entries appearing in the books were made by him or under his supervision. It was not shown that any entries were made without the defendant's sanction. People v. Rowland, 106 P. 433. (b) The defendant's contention that the court erred in admitting evidence of other separate and distinct crimes than that charged in the information is without merit. Evidence of the total shortage was properly admitted. State v. Lomax, 14 S.W.2d 438; State v. Meininger, 268 S.W. 77; State v. Wilcox, 179 S.W. 480; State v. Shour, 196 Mo. 202; State v. Gebhardt, 219 Mo. 708; State v. Wise, 186 Mo. 42. (c) Nor was there a variance in that the evidence showed that the township money embezzled was divided into school district, road district and township funds under an information charging the embezzlement of lawful money and the property of Missouri Township. State v. Baker, 285 S.W. 416; State v. Lomax, 14 S.W.2d 436; State v. Hays, 78 Mo. 607. (3) Evidence of defendant's flight from Chariton County was properly admitted. Although he fled about two years after the embezzlement charged, the evidence indicates a continued course of embezzlement subsequent thereto and that defendant fled before the crime had been discovered and before his annual settlement with the township board, and hence was evidence of his consciousness of guilt. State v. Meininger, 290 S.W. 1005; State v. Meininger, 268 S.W. 77; State v. Moore, 101 Mo. 330. (4) Defendant's exhibits 11, 12, 13, 14, 15, 16, 17 and 18, being checks drawn against the township account and not shown to be for township obligations, were erroneously admitted in evidence and properly withdrawn by the trial court. In withdrawing the checks and cautioning the jury to disregard them, the court read the statutes defining the manner in which township fund shall be paid out. The court's remarks in reference to the ruling were not prejudicial error. State v. Dearing, 65 Mo. 530; State v. Thompson, 155 Mo. 300.
Henwood, C. Davis and Cooley, CC., concur.
By an information filed in the Circuit Court of Chariton County, at Salisbury, on September 12, 1928, the defendant was charged with embezzling $ 54.50 of the funds of Missouri Township, one of the townships of Chariton County, while acting as trustee and ex officio treasurer of said township. The jury found him guilty and assessed his punishment at imprisonment in the penitentiary for two years. From the judgment and sentence entered on the verdict, he has perfected an appeal to this court.
The evidence adduced by the State is, in substance, as follows Chariton County adopted the Township Organization Law more than twenty-five years ago, and has been subject to the provisions thereof ever since. From April, 1919, until May, 1924, the defendant was the duly elected, qualified and acting trustee and ex officio treasurer of Missouri Township, in Chariton County, and, as such officer, had charge and custody of all of the funds of said township. These funds were received by the defendant from the township collector, the county collector and the county treasurer. He kept separate records of the township funds, school funds and road funds, but deposited them in a single account, in the Farmers Bank of Forest Green, in Chariton County, in the name of J. E. Colson, trustee. He filed annual settlements, covering his receipts and disbursements, every year except the last year of his service. The other members of the board of directors of the township "just took his figures" without ascertaining whether or not he actually had on hand the funds shown as balances in his annual settlements. In the latter part of May, 1926, he abandoned the duties of his office and left Chariton county, without notice to the other members of the township board or his bondsmen, and went to Kansas City, Missouri. A few days thereafter, he wrote letters to his...
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