State v. Fischer
| Decision Date | 23 February 1923 |
| Citation | 249 S.W. 46,297 Mo. 164 |
| Parties | THE STATE v. PETER A. FISCHER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Laclede Circuit Court. -- Hon. L. B. Woodside, Judge.
Reversed and remanded.
H. T Lincoln and I. W. Mayfield & Son for appellant.
(1) Section 3327, under which defendant was charged, defines separate and distinct offenses, and makes the embezzlement of money, goods, rights in action, checks and personal property each a separate and distinct offense, and the uniting of them in one and the same count of the information made the information bad. There was necessity for the State to so plead, as the evidence and exhibits, necessary to place defendant on trial, were in the possession of the State. Defendant's motion to quash should have been sustained. State v. Dobson, 72 Mo. 283; State v Adams, 108 Mo. 208; State v. Bacon, 170 Mo. 162; State v. Gibson, 111 Mo. 100. The defendant was entitled to know, by proper description in the information, what goods, rights in action, checks and personal property he was charged with having embezzled. Art. 2, sec. 22, Mo. Constitution; State v. Stowe, 132 Mo. 199, 206; State v. Krueger, 134 Mo. 262, 273; State v. Murphy, 141 Mo. 270; State v. Barbee, 136 Mo. 443; State v. Murphy, 164 Mo.App. 208. (2) Statutes will be construed against the State and in defendant's favor. Nothing is presumed against him but every doubt resolved in his favor. State v. Krueger, 134 Mo. 271. (3) The admission of the checks in evidence was error. The right to cash them was denied by the State's witness, Holt, and their admission would not sustain a charge of embezzlement of money, the purpose for which they were admitted, to defendant's prejudice. They were not described in the information either in amounts, dates, on whom given, or what bank or depository drawn, or any description whatever, and were not admissible for any purpose. State v. Castleton, 255 Mo. 210; State v. Rosenfelt, 184 S.W. 904. Error is presumed to be prejudicial until shown to have been harmless. This court cannot say what weight the jury gave to those checks. Their admission was clearly prejudicial to defendant. Holmes v. Farris, 97 Mo.App. 311; Kearney Bank v. Foreman, 129 Mo. 430. (4) Defendant's demurrer, at the close of all the testimony, should have been sustained. Defendant testified that he submitted his figures to an attorney, which figures were admitted by witness Holt, manager of the company, to be practically true, and defendant retained the money on the advice of his attorney. He was denied the right to divulge the name of his attorney by the court. He testifies that he still retains the money, and willing to meet a civil action to determine their respective contract rights. There was no showing of a felonious intent of such a nature and kind to sustain a conviction. This case involves private property, and the same rule does not apply as does to public property. State v. Hurley, 234 S.W. 823; State v. Britt, 213 S.W. 427. Defendant committed no crime when he acted on what he believed to have been a bona-fide claim, even though unfounded. State v. Reiley, 4 Mo.App. 492. Conversion of property, absent a criminal intent, is no crime. State v. Pate, 268 Mo. 431; State v. Cunningham, 154 Mo. 179. Generally speaking it is a question for the jury to say and determine if the accused acted in good faith, but in such cases it is the province of the court to pass on the question of whether the evidence has a probative force to warrant a conviction. State v. Claybaugh, 138 Mo.App. 364. (5) Being under the duty to account for his collections at the end of the week at Springfield, the conversion took place upon his failing to account in Springfield, and the trial court was without jurisdiction to try the cause here. State v. Mispagel, 207 Mo. 557.
Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.
(1) The information sufficiently charges the one crime of embezzlement of money. It charges but one offense, and the trial court did not err in overruling appellant's motion to require the State to elect to proceed on one charge. Sec. 3327, R.S. 1919; State v. Knock, 142 Mo. 515, 522; State v. Kroger, 47 Mo. 530; State v. Murphy, 141 Mo. 267; State v. Koplan, 167 Mo. 298; State v. Burks, 159 Mo. 568; State v. Lawler, 220 Mo. 26, 33. (2) For the reason that the appellant was convicted only of the embezzlement of money, and because there was not a sufficient description in the information of the "goods, rights in action, checks and personal property" to constitute charges as to them, the overruling of appellant's motion to require the State to describe said articles more particularly was not error. State v. Lawler, 220 Mo. 26, 33. (3) Evidence of the receipt of checks, the cashing of them and the conversion of the proceeds was proper. An agent or servant of a corporation who receives checks for the corporation, cashes them and embezzles the proceeds thereof, is guilty of embezzlement of the money so received, and this is so whether or not he had the authority to receive the money. State v. McCawley, 180 S.W. 869; State v. Lipscomb, 160 Mo. 125, 138; State v. Silva, 130 Mo. 440, 461. The admission of the evidence pertaining to the checks and the proof that they were embezzled by the appellant was proper as tending to show criminal intent. 8 R. C. L. 204; 9 R. C. L. 1295; State v. Wilson, 223 Mo. 156, 169; State v. Hyde, 234 Mo. 200, 224; State v. Young, 266 Mo. 723, 735; State v. Patterson, 271 Mo. 99, 109. (4) The demurrer to the evidence was properly overruled as the prosecution made out a prima-facie case of every element of the offense of embezzlement. Sec. 3327, R.S. 1919; Hanna v. Insurance Co., 241 Mo. 383, 402; State v. Britt, 278 Mo. 510, (5) The venue was properly laid in Laclede County. State v. Mispagel, 207 Mo. 557, 575; State v. Bacon, 170 Mo. 161; State v. Bouslog, 266 Mo. 73. 9 R. C. L. p. 1293.
The appellant, on a trial in the Circuit Court of Laclede County, on the seventeenth day of May, 1922, was found guilty of embezzlement, and his punishment assessed at two years' imprisonment in the State penitentiary.
The defendant was a traveling salesman for G. D. Milligan Grocer Company, of Springfield. About the eleventh day of February, 1922, the manager of the company, Fred Holt, charged the defendant with being short in his accounts, and Fischer admitted that he had collected money which he had not turned in.
It was proven that in January and February, 1922, Ficher had collected and retained money in Laclede County in excess of thirty dollars for goods sold. It was also shown that he had received checks from purchasers in Laclede County for goods sold there; that such checks were payable to the Milligan Grocer Company; that defendant had cashed them in Laclede County and had failed to account for the money. This occurred with regard to several customers to whom he had sold goods. The amount of money received on checks which he cashed was considerably more than the amount which he had collected in cash. Officers of the Milligan Grocer Company testified that Fischer was authorized to collect amounts due on accounts, but was not authorized to cash checks which were delivered to him in payment of accounts. It was his duty to forward such checks to the house every day, and to account for the cash which he received every week.
The defendant had an arrangement with his employer for a bonus, which is explained by the witnesses for the State in this way: he was to receive fifty per cent of the gross profits on his sales, from which fifty per cent were to be deducted his salary and traveling expenses. He received a salary of one hundred and twenty-five dollars a month; if the salary and traveling expenses exceeded fifty per cent of the gross profits, then he would have no bonus. If they were less than fifty per cent of the gross profits, then he would have a bonus equal to the difference between his salary and expenses and fifty per cent of the gross profits.
The defendant bases his defense upon the arrangement for a bonus. He testified that the net profits were to be split forty-sixty; he was to receive forty per cent of the net profits. That is to say: All salary and expenses were to be deducted from the gross profits, and then he was to receive forty per cent of what remained. He claimed that on that basis he received a bonus for 1919 of one thousand dollars. This was denied by the officers of the Milligan Grocer Company, who said the bonus for that year was a gratuity. The gross profit on the sales for the year 1921 was about sixty-three hundred dollars; the defendant's salary and expenses were considerably more than half of that, so that according to the State's witnesses there was no bonus to pay.
According to the theory of the defendant there would be a bonus, because after deducting his salary and expenses there was a net profit of which he was entitled to forty per cent and he had a right to retain the money which he had collected to apply on his bonus for 1921.
The defendant made no concealment of his actions, but made a clear statement to the officers of the company of the different accounts which he had collected. On this evidence the jury found him guilty as stated, and he appealed from the judgment thereupon rendered.
I. The appellant attacked the information by several motions which were overruled, and error is assigned to each of such rulings. For that reason we set out in full the information, which was filed the ninth day of May, 1922, as follows:
"Now comes J. H. Bowron, the duly elected, qualified and acting prosecuting attorney within and for the County of Laclede, in the State of Missouri, and under his oath...
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