State v. Crosswhite

Decision Date19 November 1895
Citation130 Mo. 358,32 S.W. 991
PartiesSTATE v. CROSSWHITE.
CourtMissouri Supreme Court

Appeal from criminal court, Jackson county; John W. Wofford, Judge.

Robert H. Crosswhite was convicted of embezzlement, and appeals. Reversed.

J. B. Hammer, for appellant. R. F. Walker, Atty. Gen., Morton Jourdan, and W. T. Jamison, for respondent.

BURGESS, J.

At the April term, 1895, of the criminal court of Jackson county, Mo., defendant was convicted of the crime of embezzlement and his punishment fixed at two years' imprisonment in the penitentiary. From the judgment and sentence he appealed. There were six counts in the indictment, but after the evidence was all in the court withdrew the first five, and the conviction was under the sixth count, which, leaving off the formal parts, is as follows: "And the grand jurors aforesaid, on their oath aforesaid, do further present that on the 17th day of December, A. D. 1894, at said Jackson county, state aforesaid, the said Robert H. Crosswhite was a commission merchant and agent, and as such a member of the firm of Crosswhite & Co., composed of him, the said Robert H. Crosswhite, and one J. O. R. Campbell, and he, the said Robert H. Crosswhite, as such commission merchant and agent, and as such member of said firm, then and there became the consignee and bailee of one David H. Biethan, in possession of seven car loads of potatoes, of the value of five hundred and twenty-five dollars, and the property of said David H. Biethan, and which potatoes then and there came into the possession and care of said Robert H. Crosswhite as such commission merchant, and as the said consignee and bailee of said David H. Biethan, and he, the said Robert H. Crosswhite, then and there the said seven car loads of potatoes unlawfully and feloniously did embezzle and convert to his own use; and so the jurors aforesaid, on their oath aforesaid, do say that the said Robert H. Crosswhite, the said seven car loads of potatoes in manner and form aforesaid, feloniously did steal, take, and carry away, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state." The salient facts, as disclosed by the record, are briefly as follows: During the latter part of the year 1894, defendant and J. O. R. Campbell were copartners engaged in the commission business in Kansas City, Mo., under the firm name of Crosswhite & Co. In the months of October and November of that year, David A. Biethan shipped to said firm, from Blockfoot, Idaho, seven car loads of potatoes, to be sold by them for him on commission. The potatoes were sold by the firm, who received the purchase money therefor, but no part of it was ever turned over to Biethan. Defendant received between four and five hundred dollars of it, and Campbell the balance, Campbell fled the country, and had not, up to the trial of defendant, been arrested.

Defendant's first contention is that the court committed error in admitting evidence by the state, on the first five counts in the indictment, — in one of which (the fifth) he was charged with embezzling the money arising from the sale of the potatoes, — tending to show that he was guilty of that offense, then afterwards withdrawing said counts, and in not excluding such evidence from...

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