State v. Fluesmeier

• Decision Date: 31 December 1927
• Docket Number: No. 28276.,28276.
• Citation: 1 S.W.2d 133
• Parties: THE STATE v. ELIHU A. FLUESMEIER, Appellant.
• Court: Missouri Supreme Court

1 S.W.2d 133

THE STATE v. ELIHU A. FLUESMEIER, Appellant.

No. 28276.

Supreme Court of Missouri. Division No. 2.

December 31, 1927.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

REVERSED AND REMANDED.

W.R. Dalton and Anderson, Gilbert & Wolfort for defendant.

(1) There is no venue in the city of St. Louis. All checks received by the defendant were payable to his order and were deposited by him to his accounts in the banks in Wright City, Warren County. The money was checked out of these accounts at Wright City. No act was done by the defendant in the city of St. Louis. Hence, there was no jurisdiction in the city of St. Louis. State v. Sheets, 289 S.W. 553; State v. Hatch, 91 Mo. 568; State v. Bacon, 170 Mo. 161; People v. Meseros, 116 Pac. 679; Norris v. State, 25 Ohio St. 217; Raiden v. State, 57 S.E. 989. (2) As the checks were made payable to the defendant, he had the right to cash them and to deposit them to his own account, and no prosecution can be founded on his use of the checks. State v. Ross, 279 S.W. 415. (3) To support an embezzlement charge wherein it is alleged that the defendant by virtue of his office as agent obtained the property, this allegation must be proven. If the possession were not obtained under color of authority of the agency there is no embezzlement. The State seeks to supply this missing proof by presumption, and by presumption upon presumption. As there was direct evidence that the defendant did not come into possession of the bonds as agent of Louisa Knippenberg, presumptions cannot avail. Tebeau v. Ridge, 261 Mo. 557; State v. Burns, 278 Mo. 441; Canty v. Halpin, 294 Mo. 137. Nor can presumptions be based upon presumptions. Hayes v. Hogan, 273 Mo. 25; Kilroy v. Crane, 203 Mo. App. 303. (4) Defendant had these bonds in 1915 and claimed to own them then. He delivered them to the St. Louis Union Trust Company, December 15, 1915, and obtained certificates of beneficial interest in his own name as owner. This claim of ownership (if he had not been the owner) amounted to a conversion. Where property has been once converted to one's own use there can be no later conversion of the same property. Norris v. State, 25 Ohio St. 217. (5) Intent to deprive Mrs. Knippenberg of her property is essential to prove the charge laid. If defendant believed Bruce Fluesmeier owned the bonds, he could have no intent to deprive Mrs. Knippenberg of any property. Hence the court erred in refusing to give Instruction A to find defendant not guilty if he believed that Bruce Fluesmeier owned the bonds.

North T. Gentry, Attorney-General, and J.D. Purteet, Special Assistant Attorney-General, for respondent; William Baer and Thomas B. Harvey of counsel.

(1) The trial court properly overruled defendant's demurrer to the evidence interposed at the close of the case. There was substantial evidence of each essential element of the offense charged. Consequently, the court was warranted in submitting the case to the jury. Where such is the case this court is precluded from disturbing the lower court's ruling or the jury's verdict. State v. Gebhardt, 219 Mo. 708; State v. Moreaux, 254 Mo. 398. The record contains substantial evidence tending to show that as agent for Louisa Knippenberg, appellant was over sixteen years of age, and that he received moneys in the course of his employment; that it was the money of Louisa Knippenberg, his employer, and that he converted it to his own use. The evidence clearly shows, and defendant admits, that he did not account for the liquidation dividend proceeds to Louisa Knippenberg. This was sufficient to warrant the submission of the case to the jury. (2) The venue of this offense was properly laid in the city of St. Louis. State v. Fischer, 297 Mo. 164; State v. Mispagel, 207 Mo. 557; People v. Keller, 250 Pac. 585; State v. Bouslog, 266 Mo. 73; 10 Am. & Eng. Ency. Law, 1025; Landa v. Traders Bank, 118 Mo. App. 356; Brigance v. Bank of Cooter, 200 S.W. 668; Midland Natl. Bank v. Brightwell, 148 Mo. 358. Defendant deposited the bonds belonging to prosecutrix at the city of St. Louis and had issued to himself there the certificates of beneficial interest. The dividend checks in liquidation of said bonds were issued at St. Louis and were drawn on St. Louis banks, deposited by the defendant in banks in Warren County and by those banks sent to the city of St. Louis for collection and were paid in the city of St. Louis. In the city of St. Louis the defendant undertook to account for and surrender the property of prosecutrix to trustees, and omitted there to turn over to said trustees the money derived as liquidation dividends on said bonds belonging to prosecutrix. On the day thereafter at the city of St. Louis defendant without consideration, transferred said beneficial certificates to one Edward G. Stockton, assigning as his reason that he feared a lawsuit over said property, and Stockton immediately upon its issuance to him endorsed them in blank and delivered them to defendant, and at the time of the trial, on the record, they were still in the name of Stockton. (3) The trial court quite properly refused to give appellant's requested instructions. Requested instructions, the subject-matter of which has been properly covered by given instructions, need not be given. State v. Miller, 270 S.W. 291; State v. Lamb, 278 S.W. 1009. Requested Instructions A and B were properly covered in the court's instructions numbered one and two.

BLAIR, J.

Appellant was convicted of the crime of embezzlement in the Circuit Court of the City of St. Louis. He was duly sentenced to imprisonment in the State Penitentiary for a term of two years and has appealed. The indictment was in four counts, covering the same transaction. At the close of the testimony, the State elected to stand upon the second count, which charged appellant with embezzling certain mortgage bonds and $5,600 in money. The case was submitted to the jury only as to the charge of embezzling the money.

We have concluded that the venue of the alleged crime of embezzling the money was not properly laid in the city of St. Louis and will dispose of the case solely upon that point. We adopt the statement of facts prepared by the learned Attorney-General for the purposes of the opinion. We assume that all the facts in the case tending to support the judgment are therein fully and fairly stated. Said statement follows:

"Herman Frederick Knippenberg, a resident of St. Charles County, Missouri, died on April 28, 1908, leaving a will disposing of his property. After bequeathing personal property to his children, five in number, the residue of his estate was given to his wife, Louisa Knippenberg, during her natural life, with power in her to dispose of the same during her life in such manner as she deemed best. Henry Knippenberg, his son, and Dr. E.A. Fluesmeier, his son-in-law (the defendant), were named executors of the estate. On December 18, 1909, Whitaker & Company, a bond house of the city of St. Louis, in the city of St. Louis, sold ten St. Joe Bay Company first-mortgage bonds, of the value of one thousand dollars each, to Henry Knippenberg and E.A. Fluesmeier, as executors of the Knippenberg estate, the check therefor being signed by this defendant and Henry Knippenberg as executors of said estate. On January 4, 1910, the executors purchased for the estate five more of the St. Joe Bay Company bonds, being of the same par value as those of the first purchase. After the estate was duly administered, Henry Knippenberg and defendant took possession of the corpus of the estate, and managed it in the matter of investments, etc. In July, 1914, this defendant was appointed guardian of Henry Knippenberg, and from and after that time had, as agent, the exclusive charge of the handling of the property of Louisa Knippenberg, including the St. Joe Bay bonds and the money derived from said bonds. Henry Knippenberg died on July 6, 1915. On March 15, 1914, default was made in the payment of interest on the St. Joe Bay Company bonds. Shortly thereafter, a committee was organized for the protection of the interests of the holders of these bonds. The St. Louis Union Trust Company was named as the depositary for said bonds. Some time during the latter part of 1915, defendant deposited the St. Joe Bay Company bonds which had been purchased for the Knippenberg estate, as aforesaid, with the aforesaid company, in the city of St. Louis, Missouri, and had the St. Louis Trust Company issue to him and in his own name certificates of beneficial interest numbered 164 and 165. Shortly after July, 1914, after the appointment of defendant as guardian of Henry Knippenberg and when he was in exclusive charge of the property of prosecutrix, defendant reported to her and the rest of the family that the St. Joe Bay bonds were lost to the estate as far as they were concerned.

"During the year 1916 the protective committee foreclosed on the collateral security behind the bonds. This security consisted of property and assets which the aforesaid committee continue to operate for the purpose of liquidating the bonds. As the assets were realized upon, liquidation dividends were distributed to holders of the certificates of beneficial interest issued by the St. Louis Union Trust Company. These dividends were paid by and through checks drawn on various St. Louis banks.

"Defendant Fluesmeier lived in Wright City, Warren County, Missouri. From February 12, 1917, to June 24, 1924, the St. Louis Union Trust Company paid, by checks drawn on different banks in St. Louis, dividends in the sum of fifty-six hundred dollars, on account of certificates of beneficial interest numbered 164 and 165, to the defendant. All of these checks were deposited in banks in Wright City, Missouri, by defendant. The last dividend check received by defendant was in the sum of eight hundred dollars, and was drawn on the 3rd day of June, 1924. Defendant, on the 23rd...