State v. Cunningham

• Decision Date: 23 January 1900
• Citation: 55 S.W. 282,154 Mo. 161
• Parties: STATE v. CUNNINGHAM.
• Court: Missouri Supreme Court

55 S.W. 282

154 Mo. 161

STATE v. CUNNINGHAM.

Supreme Court of Missouri, Division No. 2.

January 23, 1900.

CRIMINAL LAW — EMBEZZLEMENT — MARGINS — CRIMINAL INTENT — GAMBLING TRANSACTION — EVIDENCE — INSTRUCTIONS — APPEAL.

1. Since a memorandum signed by defendant, and stating that he had bought through certain

parties an amount of wheat for another, is incomplete, and not within the statute of frauds, parol evidence is admissible for the purpose of supplying the omitted parts.

2. Where defendant, charged with embezzling funds deposited with him to purchase grain through a commission company, testified that he was acting for himself in the transaction, testimony of such company's secretary that defendant was not its agent was not prejudicial to defendant.

3. Exception to the admission of evidence in a criminal case cannot be first raised on appeal.

4. Under Rev. St. 1889, § 4218, providing that a defendant in a criminal case may be cross-examined as to any matters referred to in his examination in chief, where defendant in a criminal case testified that certain letters dated "St. Louis, Jan. 18," had reached his home after he left, it was proper to ask him on cross examination when he left.

5. Where defendant was charged with embezzling funds placed in his hands as agent, to purchase grain on margin, it is no defense to show that such funds were commingled with his own and those received from other persons, though he was acting as a broker.

6. Where defendant, charged with embezzling funds placed with him as agent to purchase grain through a commission house, testified that he alone was responsible to the purchaser, it was immaterial that the commission house stood responsible to defendant for the full amount of the wheat purchased.

7. The weight of evidence in a criminal case is for the jury, and, when there is evidence of defendant's guilt, a demurrer thereto because of insufficiency to authorize a conviction will be overruled.

8. Where defendant appropriated to his own use money deposited with him as margins, with intent to deprive the owner of it, he was guilty of embezzlement, though the contract was void under Rev. St. 1889, § 3931, declaring sales of grains and other properties, either on margin or otherwise, without the intention on the part of the purchaser of receiving and paying for the property so bought, unlawful.

9. Where the evidence showed that defendant, who was charged with embezzlement, was about 45 years of age at the time of the trial, and there was no pretense that he was under 16 years of age at the time of the commission of the offense, he was not prejudiced by the failure of the court to submit the question of his age to the jury, though Rev. St. 1889, § 3549, under which he was indicted, does not apply to persons under the age of 16 years.

10. To constitute embezzlement, it is not enough that the agent unlawfully and fraudulently appropriated the money, but there must be felonious or fraudulent intent to deprive the owner of it, though the statute defining embezzlement does not, in express terms, require that there shall be a criminal intent.

Appeal from criminal court, Greene county; E. B. McAfee, Judge.

Charles B. Cunningham was convicted of embezzling, and appeals. Reversed.

Henry C. Young, for appellant. Edw. C. Crow, Atty. Gen., and Sam. B. Jeffries, for the State.

BURGESS, J.

Defendant was convicted in the criminal court of Greene county for embezzling $250, the money of one R. F. McLemore, of whom he was alleged to have been the agent at the time of the embezzlement, and his punishment fixed at two years' imprisonment in the penitentiary. He appeals.

At the time of the commission of the alleged offense, and for some time prior thereto, the defendant was by occupation a telegraph operator, and lived at Springfield, Mo. About the middle of November, 1898, he became the correspondent of the Donovan Commission Company, a firm engaged in the commission business in the city of St. Louis. His business was that of receiving margins or advance payments on wheat, corn, and other farm products for future delivery, and placing them with said commission company. On the 18th day of January, 1899, R. F. McLemore, who lived some distance from Springfield, went to defendant's place of business in that city, and directed him to buy for him (McLemore) 5,000 bushels of wheat from the Donovan Commission Company, St. Louis, Mo., and gave him, as his agent, $250, to send them as a margin to protect the trade; the wheat to be delivered to McLemore, at his option, at any time before the 31st day of May, 1899; and at the same time defendant signed and handed to him the following memorandum:

"Deposits Must Accompany All Orders.

"We solicit and will receive no business except with the understanding that the actual delivery of property bought and sold upon orders is, in all cases, contemplated and understood, and we reserve the right to close all transactions without further notice when deposits are about exhausted.

                                         "Memo
                "No. 68.            Springfield, Mo., 1-18, 1899
                

"Bought through Donovan Commission Co., of St. Louis, for account of R. F. McLemore:

                  "5 May Wht. Chicago
                    "at 70 3-8          Stop loss option
                  "Deposits.            Com. 8
                  "E. & O. E.           C. B. Cunningham,
                                              "Broker."
                

The defendant agreed with him to make the order and transmit the money to said commission company. Instead of this, defendant wired an order to the commission company for 1,000 bushels of May wheat, and remitted to the company the sum of $10. That same evening defendant left Springfield, and went to Memphis, Tenn., and, circumstances in evidence tended to show, took with him the balance of the money, to wit, $240. From Memphis he went to St. Louis, where he was arrested about three weeks thereafter, and returned to Springfield. The defense is that defendant was not the agent of McLemore, but that McLemore purchased 5,000 bushels of May wheat from him direct, and relied solely upon his honesty and good faith for the delivery of the wheat.

On the part of the state, the court, over the objection of defendant, instructed the jury as follows: "(1) You are hereby instructed that if you believe, from the evidence, that the defendant did, on or about the 18th day of January, 1899, take or receive into his possession two hundred and fifty dollars, or any portion thereof exceeding thirty dollars, from R. F. McLemore, and that he did receive and take the same into his possession as the agent of the said R. F. McLemore, and by virtue of his employment as such agent, and that he did, on or about the 18th day of January, 1899, at the county of Greene, and state of Missouri, unlawfully convert said money, or any portion thereof exceeding thirty dollars, to his own use, without the assent of the said R. F. McLemore, you will find the defendant guilty of embezzlement, as charged in the indictment, and assess his punishment at imprisonment in the penitentiary for a term of not less than two years nor more than five years. (2) You are instructed that if R. F. McLemore delivered to the defendant two hundred and fifty dollars, and instructed defendant to send said money to the Donovan Commission Company, of St. Louis, Mo., for the purpose of buying for said McLemore five thousand bushels of wheat at a certain price per bushel, to be delivered at a future time, then the defendant was the agent of said R. F. McLemore. (3) You are instructed that the flight of defendant a short time after he received said money from said McLemore raises a presumption of guilt against him, and you may take that fact into consideration, together with the other evidence in the case: provided, you believe, from the evidence, he did flee from justice. (4) You are instructed that to buy grain for future delivery is a valid and legal transaction under the law, and although you may find from the evidence that the two hundred and fifty dollars received by the defendant from said McLemore was to be used by the defendant to buy through the said Donovan Co. for the said McLemore five thousand bushels of wheat, to be delivered in the month of May following, you will find the defendant guilty as charged if you further believe from the evidence that the defendant, after receiving said money, on or about the 18th of January, 1899, as the agent of said McLemore, unlawfully converted the same to his own use, without the assent of the said McLemore. (5) You are instructed that it is no defense in this case that the Donovan Commission Company owed the defendant anything on account of any deal other than the particular deal for the five thousand bushels of wheat for R. F. McLemore, unless the defendant instructed said commission company to apply said credit to the buying of the said five thousand bushels of wheat for the said McLemore; and you are further instructed that it is no defense that R. F. McLemore did not demand at any time from the defendant the two hundred and fifty dollars deposited with the defendant by said McLemore. (6) The court instructs the jury that they are the sole judges of the weight of the evidence and the credibility of the witness. And in determining the credit to be given any witness they should take into consideration his demeanor on the witness stand, his bias, prejudice, or interest as shown by the evidence, the probability or improbability of such witness' testimony, and all other facts and circumstances shown in evidence which may affect the credit due the testimony of such witness. (7) The court instructs the jury that the defendant is a competent witness in this case in his own behalf, but in determining the credit you will attach to his testimony you may take into consideration the fact that he is the accused person on trial, and interested in the result thereof."

At the request of defendant the court gave the following instructions: "(3) You are...