State v. Edwards

• Citation: 137 S.W.2d 447,345 Mo. 929
• Decision Date: 21 February 1940
• Docket Number: 36514
• Parties: The State v. Thomas H. Edwards, Appellant
• Court: Missouri Supreme Court

137 S.W.2d 447

345 Mo. 929

The State v. Thomas H. Edwards, Appellant

No. 36514

Supreme Court of Missouri

February 21, 1940

Appeal from Chariton Circuit Court; Hon. Paul Van Osdol Judge.

Reversed and remanded.

Jno. D. Taylor for appellant.

The court should have sustained the demurrer offered at the close of the State's case and at the close of all of the evidence for the following reasons: (a) The evidence in this case clearly establishes a sale. (b) The evidence clearly shows that defendant was the agent of the Model Mill and was not the agent of the witness, Moulder. (c) If it should be held by the court that the information in this case sufficiently charges appellant with embezzlement as an agent the evidence wholly fails to support the allegation that Edwards was at any time the agent of Moulder. (d) The evidence fails to show a criminal conversion of the wheat but definitely shows there never was a conversion, or intent to convert the wheat to the use of defendant. 6 C. J., p. 1086, secs. 3c, 4; Parlett v. Blake, 108 F. 204; Powder Co. v. Burkhardt, 97 U.S. 110; Potter v. Mt. Vernon Roller Mill Co., 101 Mo.App. 581; 55 C. J., pp. 37-38, 41, 68-69, 70, secs. 32, 33; Sec. 2968, R. S. 1929.

Roy McKittrick, Attorney General, and Olliver W. Nolen, Assistant Attorney General, for respondent.

(1) The information filed in lieu of the indictment properly charges the defendant with the crime of embezzling wheat. Sec. 4079, R. S. 1929; State v. McWilliams, 267 Mo. 449, 184 S.W. 96; State v. Blakemore, 226 Mo. 560, 126 S.W. 429; State v. Everman, 44 S.W.2d 36; State v. Cutter, 318 Mo. 687, 1 S.W.2d 96; State v. Adams, 318 Mo. 712, 300 S.W. 738; State v. Shour, 196 Mo. 202, 95 S.W. 405; State v. Lipscomb, 160 Mo. 125, 60 S.W. 1081; State v. Adams, 108 Mo. 208, 18 S.W. 1000; State v. Moreaux, 254 Mo. 398, 162 S.W. 158; State v. Larew, 191 Mo. 192, 89 S.W. 1031; State v. Britt, 278 Mo. 510, 213 S.W. 425; State v. Ross, 279 S.W. 411, 312 Mo. 510; 1 Wharton, Criminal Procedure, p. 472. (2) This court will not consider defendant's motion to quash the information for the reason that the grounds for the quashing of said information are not set forth in the motion for new trial. State v. Hall, 102 S.W.2d 878; State v. Layton, 332 Mo. 216, 58 S.W.2d 454. (3) Appellant waived his right to urge the sustaining of the demurrer at the close of the State's case by offering evidence in his defense. The demurrer at the close of all the evidence in the case was properly overruled. State v. Adams, 318 Mo. 712, 300 S.W. 742; State v. Farrar, 285 S.W. 1000; State v. Liston, 318 Mo. 1222, 2 S.W.2d 780; State v. Miller, 57 S.W.2d 1080, 332 Mo. 307; State v. Watkins, 87 S.W.2d 184, 337 Mo. 901; State v. Coster, 157 S.W. 85, 170 Mo.App. 539.

OPINION

Ellison, P. J.

The appellant was convicted in the Circuit Court of Chariton County of embezzling 3,353 bushels and 25 pounds of wheat valued at $ 3051.63, the property of Luke V. Moulder. The jury assessed his punishment at two years' imprisonment in the penitentiary, and on a paper separate from the verdict unanimously recommended a parole or clemency. The grounds for reversal urged on this appeal, among others, are: (1) that the trial court erred in overruling appellant's motion to quash, which alleged the information failed to charge any offense under the statute, Section 4079, Revised Statutes 1929 (Mo. Stat. Ann., p. 2880); (2) that the court erred in overruling appellant's demurrer to the evidence.

Embezzlement is purely a statutory offense, and did not exist at common law. [18 Am. Jur., sec. 2, p. 571; 20 C. J., sec. 2, p. 408.] The statute here invoked contemplates the commission of the crime by persons in various capacities. It states in the disjunctive: "If any agent, clerk, apprentice, servant or collector of any private person, or of any co-partnership, except persons so employed under the age of sixteen years, or if any officer, agent, clerk, servant or collector of any incorporated company, or any person employed in any such capacity," (italics ours) shall commit the embezzlement, etc.

Summarized, the information charges:

(1) that the appellant was the president and principal stockholder of the Model Mill Company of Salisbury, Missouri, a corporation engaged generally in the business of a public warehouse and receiving and selling grain on commission; and that the appellant was the active manager of said mill and in complete control of its business affairs;

(2) that between June 25 and July 15, 1934, the Mill Company, acting through the appellant, received from Moulder the wheat aforesaid under an oral contract between the Mill Company, acting through the appellant, and Moulder, to store the same for a consideration of one-half cent per month per bushel for every month after the first thirty days said wheat was stored in said mill, and to hold said wheat in storage subject to the order of sale of Moulder, or to what(ever) other order Moulder might make concerning the disposition of said wheat;

(3) that the Mill Company, and the appellant as president, principal stockholder and active manager of said company, were "by the contract aforesaid then and there constituted and made the agents" of Moulder for the purpose of attending to the storage of said wheat according to said contract; that the wheat then and there came into the custody and possession of the Mill Company and the appellant, as president, principal stockholder, and active manager, by virtue of the agency and employment of the Mill Company and the appellant, as president, principal stockholder and active manager thereof, as aforesaid; the appellant being at all said times a person above the age of sixteen years;

(4) that thereafter and prior to January 9, 1936, said wheat, owned by Moulder, was willfully, fraudulently and feloniously embezzled and converted by the appellant to his own use "without the assent of his master and principal," Moulder.

Appellant's first assignment, that the information failed to charge any offense under the statute, in part is a charge of duplicity. As already stated, the statute mentions among others these two capacities in which a defendant may commit the embezzlement: (1) as the agent or employee of any private person, except when under the age of sixteen years; (2) as the officer, agent or employee of any incorporated company. Appellant contends the information charges in one count that he committed the embezzlement in both said capacities. Rereading, it will be seen paragraph 1 thereof does charge the appellant was the president, principal stockholder and active manager of the Mill Company, a corporation. Paragraphs 2 and 3 say the Mill Company, acting through the appellant, received Moulder's wheat under a contract. Paragraph 3 asserts that both the Mill Company and the appellant as its president, stockholder and active manager, were by said contract constituted and made the agents of Moulder; and that the appellant was over sixteen years old. Paragraph 4 charges he committed the embezzlement without the assent of his master and principal, Moulder.

All this may appear to bear out appellant's contention that the information charges appellant committed the embezzlement both as the agent of Moulder and also as the manager of the Mill Company, a corporation. But even so, that fact would not make it bad if the two charges are consistent. [State v. Shelby, 333 Mo. 1036, 1045, 64 S.W.2d 269, 272; State v. Flynn, 258 Mo. 211, 221, 167 S.W. 516, 519.] However, we think the information does not make any such double charge. While it alleges the appellant sustained the dual relation of officer and manager of the Mill Company, and agent of Moulder, yet it does not say he committed the embezzlement in both capacities. On the contrary the charge is that he committed the embezzlement "without the assent of his master and principal," Moulder, thus discarding that far the previously alleged fact that he was also officer and agent of the Mill Company.

Nevertheless, we cannot reject this latter allegation as surplusage, since the theory of the information is that appellant individually became the agent of Moulder because he represented the Mill Company in making its contract with Moulder for the storage of the wheat. This is not a sufficient allegation of appellant's agency for Moulder -- or rather, it pleads too much. When an officer of a corporation makes a contract with a third party whereby the corporation is constituted the agent of the latter, it is not the law that the officer thereby personally becomes the agent of the third party. Agency rests on the intention, the mutual understanding, of the parties, express or implied. [2 C. J. S., sec. 17, p. 1041 et seq.; 2 Am. Jur., sec. 23, p. 25.] If the appellant was the agent for Moulder, he represented both adversary parties, Moulder and the Mill Company. And it is well established that such a dual agency cannot exist without the knowledge and consent of both parties. [14a C. J., sec. 2225, p. 365; sec. 520, p. 838; 3 C. J. S., sec. 141, p. 15.] The information does not allege there was any agreement or understanding between appellant and Moulder that the former should represent the latter. It does not allege appellant committed the embezzlement in his capacity as officer of the Mill Company. For these reasons we think it was fatally defective.

As to the second assignment, that the State failed to make a case for the jury under the statute. It will be remembered the second paragraph of the information, summarized above charges the contract between Moulder and the Mill Company provided the latter should store the former's wheat for a consideration payable monthly, holding it subject to Moulder's order of sale, or any other order he might...