State v. Gilmore

• Decision Date: 28 March 1892
• Parties: STATE v. GILMORE.
• Court: Missouri Supreme Court

19 S.W. 218

110 Mo. 1

STATE v. GILMORE.

Supreme Court of Missouri, Division No. 2.

March 28, 1892.

EMBEZZLEMENT — INDICTMENT — DISQUALIFICATION OF JUDGE — ELECTION OF SPECIAL JUDGE — REVIEW ON APPEAL — OBJECTIONS WAIVED.

1. An order of the trial court in a criminal case recited: "The presiding judge of the court being incompetent, as he believes, to try said cause, by reason of his knowledge of the facts involved, and the parties not having agreed upon a member of the bar * * * to try said cause, the court orders that the members of the bar present do now proceed, under the directions of the clerk of this court, to hold an election for a special judge to try said cause. * * *" Held, that the order shows that the presiding judge knew of facts rendering him incompetent, and the order and election of a special judge were proper, under Rev. St. § 4174, declaring a judge of a criminal court incompetent to try a cause "when he is anywise interested or prejudiced," and section 4177, declaring that, whenever it shall be within the knowledge of the judge that he is disqualified, he shall, without application on the part of defendant, order an election of a special judge.

2. Even if such order was irregular, defendant cannot on appeal assign it as a ground for reversing a judgment of conviction, where he was present in court with his attorney when it was made, and the election had, and saved no exception.

3. The mere omission in such order of the words "licensed" and "enrolled," as descriptive of the attorneys who participated in the election, does not render the order a nullity, where the order speaks of them as members of the bar, and recites that the clerk, in conducting the election, conformed to the statute, since it will be presumed that the clerk properly performed his duty.

4. An indictment for embezzlement is not bad on the ground that it charges both larceny and embezzlement, where, after charging embezzlement, it concludes with the words, "and the said G. the said money, in manner and form aforesaid, did then and there unlawfully and feloniously steal, take, and carry away."

5. An indictment for embezzlement is not bad because it consists of two counts; the first charging that defendant received money as agent and attorney, and did unlawfully and feloniously embezzle and fraudulently convert the same to his own use without the assent of his employer, and the second charging that he did unlawfully and feloniously take, make way with, and secrete it, with intent to feloniously embezzle and fraudulently convert the same to his own use.

6. Motions in arrest and motions for new trial can only be made part of the record, so as to be considered on appeal, by being incorporated in a bill of exceptions, and when so incorporated the appellate court cannot notice alleged error in overruling them unless such action was excepted to at the time.

7. On appeal, errors assigned in the admission or rejection of evidence, the giving or refusing of instructions, and the use of improper remarks by the prosecuting attorney, though assigned as error in a motion for a new trial, cannot be considered if the action of the court in overruling such motion was not excepted to at the time.

Appeal from criminal court, Jackson county; BENJAMIN T. HARDIN, Special Judge.

Indictment against L. A. Gilmore for embezzlement. From a judgment of conviction, he appeals. Affirmed.

The indictment was in two counts, the first of which charged that defendant, "being then and there the agent, to-wit, attorney and collector, of a certain private person, to-wit, of one Eva Abbott, and the said L. A. Gilmore being then and there not a person under the age of sixteen years, did then and there, by virtue of his said employment as such agent of the said Eva Abbott, have, receive, and take into his possession and under his care certain money, to a large amount, to-wit, to the amount of five hundred dollars, lawful money, of the value of five hundred dollars, of the property and moneys belonging to the said Eva Abbott; and the said L. A. Gilmore the said money then and there unlawfully and feloniously did embezzle and fraudulently convert to his own use, without the assent of his employer, the said Eva Abbott, the owner of said money; and the said L. A. Gilmore the said money in manner and form aforesaid did then and there unlawfully and feloniously steal, take, and carry away, — against the peace and dignity of the state." The second count charged that defendant, "being then and there the agent, to-wit, the attorney and collector, of a certain private person, to-wit, one Eva Abbott, and the said L. A. Gilmore being then and there not a person under the age of sixteen years, did then and there, by virtue of his said employment as such agent of the said Eva Abbott, have, receive, and take into his possession and under his care certain money, to a large amount, to-wit, five hundred dollars, lawful money, of the value of five hundred dollars, of the property and moneys belonging to the said Eva Abbott; and the said L. A. Gilmore the said money then and there unlawfully and feloniously did take, make way with, and secrete, with intent then and there to feloniously embezzle and fraudulently convert to his own use, without the assent of his employer, the said Eva Abbott, the owner of said money; and the said L. A. Gilmore the said money in manner and form aforesaid feloniously did then and there steal, take, and carry away, — against the peace and dignity of the state."

Crittenden, Stiles & Gilkeson, for appellant. John M. Wood, Atty. Gen., for the State.

GANTT, P. J.

The defendant was indicted by the grand jury of Jackson county, in the criminal court of said county, at the regular September term, 1890, for having on the 29th of October, 1889, as attorney of Mrs. Eva Abbott, collected and received into his possession $500 belonging to her, and fraudulently embezzled and converted the same to his own use, without her assent, and was convicted. The indictment contained two counts. He was duly arraigned, and entered his plea of not guilty. The cause was set down for trial on the 9th day of December, during the same term of court. On that day the following entry was made and entered of record in the said criminal court of which Hon. HENRY P. WHITE was judge, to-wit: "Now comes the prosecuting attorney, and comes also the defendant, L. A. Gilmore, in his own proper person; and the presiding judge of the court being incompetent, as he believes, to try said cause, by...