State v. Fischer

• Decision Date: 23 February 1923
• Docket Number: No. 23828.,23828.
• Citation: 297 Mo. 164,249 S.W. 46
• Parties: STATE v. FISCHER.
• Court: Missouri Supreme Court

249 S.W. 46

297 Mo. 164

STATE v. FISCHER.

No. 23828.

Supreme Court of Missouri. Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Peter A. Fischer was convicted of embezzlement, and he appeals. Reversed and remanded.

H. T. Lincoln, of Springfield, and I. W. Mayfield & Son, of Lebanon, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

WHITE, J.

The appellant, on a trial in the circuit court of Laclede county, on the 17th 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 11th 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 in January and February, 1922, Fischer had collected and retained money in Laclede county in excess of $30 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 50 per cent. of the gross profits on his sales, from which 50 per cent. were to be deducted his salary and traveling expenses. He received a salary of $125 profits, then he would have no bonus. If they were less than 50 per cent of the gross profits, then he would have a bonus equal to the difference between his salary and expenses and 50 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 40-60; he was to receive 40 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 40 per cent. of what remained. He claimed that on that basis he received a bonus for 1919 of $1,000. 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 $6,300. 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 40 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 9th 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 of office as such prosecuting attorney and upon his hereto appended oath informs the court that one P. A. Fischer, known as `Pete' Fischer, on or about the 7th day of February, 1922, and on other dates within a period of three years prior to said 7th day of February, 1922, at and in the county of Laclede, in the state of Missouri, aforesaid, being then and there agent, clerk, servant, and collector of the G. D. Milligan Grocer Company, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, and he, the said P. A. Fischer, known as `Pete' Fischer, not being then and there a person under the age of sixteen years, then and there by virtue of such employment and office of agent, clerk, servant and collector of the said G. D. Milligan Grocer Company, a corporation, as aforesaid, did have, receive, and take into his possession and under his care and control certain money, goods rights in action, checks, and personal property of the amount and value of $380.45, the same being then and there lawful money of the `United States, and which said money, goods, rights in action, checks, and personal property was then and there of the value of $380.45, and the money, goods, rights in action, checks, and personal property of the said G. D. Milligan Grocer Company, a corporation as aforesaid, the employer of him, the said P. A. `Fischer, known as `Pete' Fischer, the said money, goods, rights in action, checks, and personal property then and there unlawfully, fraudulently, and feloniously did embezzle and convert to his own use, without the assent of the said G. D. Milligan Grocer Company, a corporation, as aforesaid, the owner of said money, goods, rights in action, checks, and personal property with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the said G. D. Milligan Grocer Company, a corporation, as aforesaid of the use thereof; contrary to the statutes in such case made and provided and against the peace and dignity of the state.

                                            "J. H. Bowron
                

"Prosecuting Attorney, Laclede County, Mo."

The defendant first filed a motion to quash the information on the ground that it charged the commission of more than one crime in one count—the embezzlement of money and the embezzlement of goods. The information is based upon section 3327, R. S. 1919, which defendant correctly says describes two offenses, but the two offenses mentioned in that section are not the taking of different kinds of property. One offense described is "secreting property with intent to embezzle," and the other is the actual embezzlement. State v. Stevens, 281 Mo. loc. cit. 644, 220 S. W. 844; State v. McWilliams, 267 Mo. loc. cit. 448, 184 S. W. 96. The offense here charged is actual embezzlement, and the crime is a single one, although it may consist of the embezzlement of several articles and of different kinds of property. That motion was properly overruled. The...