State v. Florian

Citation200 S.W.2d 64
Decision Date10 February 1947
Docket NumberNo. 40090.,No. 40091.,40090.,40091.
PartiesSTATE v. THOMAS FLORIAN, Appellant.
CourtUnited States State Supreme Court of Missouri
200 S.W.2d 64
No. 40090.
No. 40091.
Supreme Court of Missouri.
Division One, February 10, 1947.
Rehearing Denied, March 10, 1947.

[200 S.W.2d 65]

Appeal from Circuit Court of City of St. Louis. — Hon. Robert L. Aronson, Judge.


Morris A. Shenker for appellant; Ivan H. Light of counsel.

(1) The indictment is defective for failure to allege how and when defendant became the "agent and servant" of Sheehy, purpose of the agency and authority for his appointment. Constitution, Art. II, Sec. 22; State v. Flint, 62 Mo. 393; State v. Mitnick, 339 Mo. 127, 96 S.W. (2d) 43; State v. Meysenberg, 171 Mo. l.c. 47, 71 S.W. 1. c. 233. (2) "Facts are to be stated, not conclusions of law alone." State v. Meysenberg, 171 Mo. 1. c. 46; United States v. Cruikshank, 92 U.S. 1. c. 558. (3) A bare allegation of "agency" is a mere legal conclusion and is not sufficient pleading. Piggott v. Denton, 46 S.W. (2d) 618; Schindler v. Sorbitz, 268 S.W. 432; Baum v. Stephenson, 133 Mo. App. 187, 113 S.W. 225; Furlong v. Druhe, 2 S.W. (2d) 162; State v. Holder, 335 Mo. 175, 72 S.W. (2d) 489; State v. Ross, 321 Mo. 510, 279 S.W. 1. c. 413. (4) The inclusion of legal conclusions adds nothing to the pleading. It will be construed as though such words "did not appear." Piggott v. Denton, 46 S.W. (2d) 1. c. 620. (5) The sufficiency of the indictment, part of the record proper, is always before the court. State v. Meysenberg, 171 Mo. 1. c. 51, 71 S.W. 1. c. 234. (6) There was a fatal variance in the proof. Defendant was convicted under Count 1, charging embezzlement of money. The proof showed the embezzlement, if any at all, of a cashier's check. An allegation of the embezzlement of money is not met by proof of embezzlement of a check, or of other property. State v. Mispagel, 207 Mo. 557, 106 S.W. 513; State v. Caselton, 255 Mo. 201, 164 S.W. 492; State v. Rosefelt, 184 S.W. 904; State v. Sheets, 289 S.W. 553; State v. Fischer, 297 Mo. 164, 249 S.W. 46; State v. Peck, 299 Mo. 454, 253 S.W. 1019. (7) The state's proof showed a loan or debtor and creditor relationship, coupled with a contract, rather than one of agency. Such a variance in proof is fatal. Exhibit 2, the 30-day note for $5,000, given by defendant to Sheehy upon receipt of the $5,000 check, offered in evidence by the state, was to be construed by the court, not the jury, and it showed that defendant was Sheehy's debtor, not his agent. The note was read and retained by Sheehy with full knowledge of its import. State v. Brown, 171 Mo. 477, 71 S.W. 1031; State v. Anderson, 186 Mo. 25, 84 S.W. 946; State v. Peck, 299 Mo. 454, 253 S.W. 1019; State v. Obuchon, 159 Mo. 256, 60 S.W. 85. (8) The evidence showed a bailment, rather than agency, if any trust at all. Such a variance is fatal, because embezzlement by a bailee must be so charged under the separate statute. Sec. 4473, R.S. 1939; State v. Caselton, 255 Mo. 201, 164 S.W. 1. c. 495; State v. Stevens, 281 Mo. 639, 220 S.W. 844. (9) For our purposes, a bailment may be defined as the relationship resulting from the act of the owner of personal property entrusting it to the custody of another person, bailee, for some particular purpose, frequently for safekeeping or to hold, but it may be to sell, carry, transport, convert, pledge, repair, improve, or to dispose of or deal with in any lawful manner, and, of course, it is up to the parties to fix the terms of the bailment and they may do so. State v. Peck, 299 Mo. 1. c. 460, 253 S.W. 1019; State v. Stevens, 281 Mo. 639; Sowden v. Kessler, 76 Mo. App. 1. c. 585, citing Lawson on Bailments, sec. 17; Hendricks v. Evans, 46 Mo. App. 315; Hartford v. Tabor, 21 S.W. (2d) 207; Piggott v. Denton, 46 S.W. (2d) 618. (10) The evidence, as well as the prosecutor's theory of it, showed larceny, rather than embezzlement, if any offense at all. State v. Harrison, 247 Mo. 1230, 152 S.W. (2d) 161; State v. Anderson, 186 Mo. 25, 84 S.W. 946; State v. Harmon, 106 Mo. 635, 18 S.W. 128. (11) Instruction 1, defining embezzlement as used herein, was too broad. The trust referred to in Instruction 1 was broader than the specific type of trust charged, to wit, agency. Instruction 1 permitted the jury to consider of any and all types of "trust," rather than confining it to the particular form of fiduciary herein alleged. (12) An instruction broader than the proof is erroneous. State v. Britt, 278 Mo. 512, 213 S.W. 425. (13) The giving of such an abstract instruction is reversible error. State v. Byrnes, 177 S.W. (2d) 1. c. 912. (14) Agency is a legal relation which can result only from certain facts. The construction of such facts is for the determination of the court, and the jury of laymen should have been told what constituent facts they must first find in order to establish the legal conclusion of agency. Instruction 2, barely mentioning agency, was wholly insufficient. State v. Cunningham, 154 Mo. 168, 55 S.W. 282; State v. Brown, 171 Mo. 477, 71 S.W. 1031. (15) On the general nature of agency, see: 2 Restatement of the Law of Agency, sec. 1 (1); Peters v. Railroad, 150 Mo. App. 721, 131 S.W. 917. (16) This was part of "the questions of law arising in the case" on which the court is required by statute to instruct, "whether requested or not," and which further provides that "failure to so instruct shall be good cause" for reversal and a new trial. Sec. 4070, R.S. 1939; State v. Crowley, 345 Mo. 1177, 139 S.W. (2d) 473; State v. Bradley, 179 S.W. (2d) 1. c. 101. (17) This statute obviously requires a good instruction. State v. Aitkens, 179, S.W. (2d) 84; State v. Bradley, 179 S.W. (2d) 1. c. 101. (18) And this is so, howsoever the evidence got in the case, whether introduced by state or defendant, and whatsoever its form. State v. Wright, 175 S.W. (2d) 866. (19) There was a misjoinder of counts. Joinder of count 1 for embezzlement with count 3 for obtaining money by false pretenses is authorized by no statute or decision of this court. They are separate and distinct offenses, not cognate or corollary, and trial for one would be no bar to prosecution for other. Secs. 3940, 3941, 4448, R.S. 1939; State v. Christian, 252 Mo. 382, 161 S.W. 736; State v. Young, 266 Mo. 1. c. 732, 183 S.W. 304; State v. Link, 315 Mo. 192, 286 S.W. 12; State v. Garrish, 29 S.W. (2d) 71; State v. Anderson, 186 Mo. 25, 84 S.W. 946. (20) The court should have compelled an election by the state between counts 1 and 3. State v. Gant, 33 S.W. (2d) 970; State v. Brown, 317 Mo. 361, 296 S.W. 125; State v. Kibby, 7 Mo. 317. (21) The court had no right to order stricken from record part of argument of defendant's counsel, merely because it believed the argument was unsound or contained unwarranted inferences. State v. Rosegrant, 338 Mo. 1153, 93 S.W. (2d) 961; State v. Wright, 319 Mo. 46, 4 S.W. (2d) 456; State v. Murray, 316 Mo. 31, 292 S.W. 434. (22) Instruction 7, advising jury that if they found defendant guilty, but were unable to agree upon the punishment, the court would assess the same, suggested and emphasized unnecessarily the idea of guilt to the jury. State v. Hampton, 172 S.W. (2d) 1. (23) The pleas of Autrefois convict should have been sustained. Receipt of different items of property under the same fiduciary relation and felonious conversion of all, or any part thereof, constitutes but a single offense in embezzlement. Such is the rule of this court and of the great weight of authority. State v. Toombs, 326 Mo. 981, 34 S.W. (2d) 61; State v. Noland, 111 Mo. 473, 19 S.W. 715; State v. Harmon, 106 Mo. 635, 18 S.W. 128; State v. Fischer, 297 Mo. 164, 249 S.W. 46; State v. Kurth, 105 Mont. 260, 72 P. (2d) 687; Moore v. State, 58 Okla. Cr. 122, 50 P. (2d) 746; State v. Reinhart, 26 Ore. 466, 38 P. 822; Brown v. State, 18 Ohio St. 496; Craig v. State, 95 Fla. 374, 116 So. 272; Ker v. People, 110 Ill. 627; People v. Fleming, 220 Cal. 601, 32 P. (2d) 593; Young v. State, 44 Ohio App. 1, 184 N.E. 24; State v. Wissing, 187 Mo. 96, 85 S.W. 557; State v. Pratt, 98 Mo. 482, 11 S.W. 977; State v. Lawson, 239 Mo. 591, 145 S.W. 93; State v. Anderson, 186 Mo. 25, 84 S.W. 946; State v. Clark, 220 Mo. App. 1308, 289 S.W. 963; State v. Laughlin, 180 Mo. 342, 79 S.W. 401. (24) It is not the "receiving" of property that is the gist of the offense but the felonious conversion of some of it in breach of trust that is the gravamen. The amount received does not correspond to the amount embezzled or vice versa, and both amounts are immaterial, except in so far as determining whether the offense shall receive the punishment of grand larceny or of petit larceny. State v. Noland, 11 Mo. 1. c. 504; State v. Pratt, 98 Mo. 1. c. 491; State v. Wissing, 187 Mo. 1. c. 107; State v. Laughlin, 180 Mo. 1. c. 359.

J.E. Taylor, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The indictment is sufficient...

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