State v. Dees

• Decision Date: 14 March 1955
• Docket Number: No. 44205,No. 1,44205,1
• Citation: 276 S.W.2d 201
• Parties: STATE of Missouri, Respondent, v. Willis DEES, Appellant
• Court: Missouri Supreme Court

Page 201

276 S.W.2d 201

STATE of Missouri, Respondent, v. Willis DEES, Appellant.

No. 44205.

Supreme Court of Missouri, Division No. 1.

March 14, 1955.

Wm. T. Powers, Piedmont, J. Ben Searcy, Eminence, for appellant.

John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Judge.

Upon trial by jury in the Circuit Court of Wayne County, defendant was found guilty of embezzlement of the sum of $61.50 of public moneys that came to him by virtue of his office as sheriff of said county, as that offense is defined in Sec. 560.280. (All statutory references herein are to RSMo 1949 and V.A.M.S.)

Defendant's punishment was assessed at imprisonment in the State Penitentiary for a term of two years. He has appealed from the sentence imposed in conformity with the verdict, but has not presented us with a brief. We, therefore, examine the record and valid assignments of error set forth in the motion for new trial. Rules 28.02, 42 V.A.M.S., and 27.20, 42 V.A.M.S.

At the time of the occurrences hereinafter narrated, defendant was the duly elected, qualified and acting sheriff of Wayne County. On May 6, 1950, as shown by jail records, he arrested one Carl Bailey for the offense of careless and reckless operation of a motor vehicle. On May 8, 1950, Bailey pleaded guilty to that offense in the Magistrate Court of Wayne County, as shown by its records and files in case No. 483, and was sentenced to pay a fine of $50 and court costs in the sum of $11.50. In default of payment thereof, he was committed to the county jail. On the evening of May 8, 1950, defendant, at Carl's request, took Carl to the home of his parents, Mr. and Mrs. C. J. Bailey, where Carl and his father conferred. On the 10th day of May, 1950, Mr. and Mrs. C. J. Bailey went to defendant's office in Greenville, at which time they were permitted to talk with Carl at the jail, following which they returned to defendant's office and then and there gave defendant a check, dated May 10, 1950, drawn on the Bank of Poplar Bluff, payable to the order of defendant in the sum of $66.50 and signed by C. J. Bailey, in payment of said fine and costs and a charge of $5 made by defendant for taking Carl to the home of his father on the evening of May 8th. This check bears the endorsement of defendant and was paid by the drawee bank on May 13 (or 15), 1950. Admittedly, defendant received the proceeds thereof at the time he endorsed it. Carl was thereupon released from custody.

Mary Bollinger Glenn, Clerk of the Magistrate and Probate Courts of Wayne County since 1947, testified in behalf of the State: A memorandum attached to the file in the case of State v. Carl Bailey, No. 483, and being such an entry as is generally made in such cases, shows: 'No money paid, plea of guilty, 5-8-50, $50.00 fine and $11.50 costs.' There is no record showing payment. No money was ever paid to her in case No. 483. There was also a notation in the files: 'See Pete (defendant) about this.' Two or three days after the fine was assessed, defendant told her that Carl's father 'was sort of a preacher like and he was going to let him (Carl) stay in jail.' Sometime later defendant told her he let Carl go home, that Carl was going to bring the money or send it. Later she again asked defendant about the matter and suggested he should bring Carl back to jail. Defendant and told her he heard Carl had enlisted in the army and was probably gone.

On cross-examination, witness testified: Judge Templeton (of the Magistrate and Probate Courts) was ill and in the hospital several times in 1950, at which times witness was in charge of the office. But he was in the office on the 8th and 10th days of May and made a bank deposit on the 10th. Her conversations with defendant were within two months after the fine was assessed. She did not recall on May 10, 1950, defendant, accompanied by two men, Rolla Elder and Roy St. Clair, came into her office and laid money on the desk, nor did she recall any conversation between the judge and defendant 'about it being for a fine and costs of Carl Bailey.'

Matt H. Reichert, Judge of the Magistrate and Probate Courts, testified: He was Prosecuting Attorney of Wayne County in 1950 and, as such, filed a criminal prosecution against defendant arising out of the Carl Bailey fine and costs. One or two weeks after Carl's conviction the clerk told witness the fine had not been paid. He then had a conversation with defendant, during which defendant told him he let Carl go home to get the money to pay it, but that Carl had not returned with it. About two weeks later, the clerk again asked him to see defendant about it, which he did. Defendant told witness he heard that Carl had gone into the army.

Defendant testified: He arrested Carl Bailey on Sunday, May 7, 1950. On Monday, at Carl's insistence, defendant took him to his parents' home. On Wednesday, Mr. and Mrs. C. J. Bailey delivered to defendant the check hereinabove mentioned, $61.50 of which defendant paid to Judge Templeton in currency on that day. Mary Glenn, the clerk, was present and picked up the money. Roy St. Clair and Rolla Elder were also present. He never had any conversation with Matt Reichert, the (then) prosecuting attorney, about the Carl Bailey fine and costs.

Rolla Elder testified: He saw defendant pay money to Judge Templeton and identified C. J. Bailey as the person present when the money was paid. Roy St. Clair was also present.

It was stipulated and the jury was advised that Roy St. Clair would testify, if present, that on or about May 10, 1950, he was in the office of defendant when a man whom he later learned to be C. J. Bailey was talking to defendant about a fine and costs owed by his son to the county and state, and that he there saw Bailey give defendant a check. The sheriff laid some money on a desk and 'the young lady picked it up.' Rolla Elder was also present.

Mary Bollinger Glenn was recalled to the witness stand by defendant and testified that she did not issue a receipt to one Walter Biggers on or about the 11th day of February, 1950. Her fee book did not show that he paid her the sum of $33.50 on that date. Biggers did not pay her any money in February, 1950.

Walter Biggers was then called to the witness stand by defendant, and defendant offered to prove by him that he lived at 1306 S. Broadway, St. Louis; that he paid a fine in Wayne County, Missouri, in February, 1950, 'for drunk and reckless driving'; that on that occasion he was arrested by defendant, kept in jail over night, and the next day was released upon his promise to return the next day and pay a fine of $25 and $8 costs; that he did as promised, paying the fine and costs to a young lady whom he identified as Mary Bollinger Glenn; that she gave him no receipt. The offer was denied.

Both C. J. Bailey and Mrs. Bailey testified that neither Rolla Elder nor Roy St. Clair was present when the fine and costs were paid to defendant.

Over objection of defendant, the State, in rebuttal, was permitted to place in evidence and read to the jury duly identified statements of account submitted by defendant to the County Court of Wayne County for the board of prisoners lodged in the county jail during the months of May and June, 1950. The statement for the month of May showed that defendant charged the county for the board of Carl Bailey, in said case No. 483, for a period of 26 days beginning May 6, 1950. The statement for the month of June submitted a like charge for the board of Carl Bailey in said numbered case for 16 days during that month. The court also admitted in evidence, over objection of defendant, warrants issued by the County Court of Wayne County to defendant in payment of the aforesaid board bills.

The trial court, over the objection of defendant, permitted Belva Ijames to testify in rebuttal: Witness succeeded defendant as Sheriff of Wayne County and came into possession of 'the prisoner's record book.' It showed 'prisoner No. 150, Carl Bailey, committed May 6, (1950) by Sheriff Dees. * * * May 6th, he was taken as a prisoner and discharged the 16th of June, 1950.'

In surrebuttal, defendant testified: He had another Bailey, 'Charles', in jail for about two months during the time referred to in the records above set forth, and 'just made the mistake and put 'Carl' there.' He never made any record for the period of Carl's incarceration and 'didn't charge Carl a dime board there for four or five days.'

Defendant, in surrebuttal, also introduced in evidence the files in the case of State of Missouri v. Willis Dees (defendant herein), Case No. 770. These files showed, in substance, that defendant had been charged (on information filed by the prosecuting attorney in the Circuit Court of Wayne County on June 29, 1953) with unlawfully and fraudulently presenting to the County Court of Wayne County an account for board of Carl Bailey in the county jail for 16 days in the month of June, 1950, whereby he obtained the sum of $16 from said county, when, in truth, Carl Bailey had not been confined in jail during that period of time; and that, upon motion of defendant, said cause had been dismissed because the prosecution thereof had been barred by limitation.

The information in the instant case charges in meticulous detail all of the facts necessary to show that defendant, as Sheriff of Wayne County, did wilfully, fraudulently and feloniously convert to his own use the sum of $61.50 of public moneys received by him in payment of the fine and costs imposed upon Carl Bailey by the Magistrate Court of said county, as that offense is defined in Sec. 560.280. It is sufficient in form and substance. State v. Noland, 111 Mo. 473, 486, 19 S.W. 715, 717; State v. Brawley, Mo.Sup., 242 S.W.2d 564.

The evidence introduced in behalf of the State made a submissible case of the defendant's guilt of each and every essential element of the offense denounced by the statute, Sec. 560.280, and charged in the...