State v. Gould

• Decision Date: 17 February 1932
• Docket Number: 31702
• Citation: 46 S.W.2d 886,329 Mo. 828
• Parties: The State v. George A. Gould, Appellant
• Court: Missouri Supreme Court

46 S.W.2d 886

329 Mo. 828

The State v. George A. Gould, Appellant

No. 31702

Supreme Court of Missouri

February 17, 1932

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

V E. Phillips and R. T. Cooper for appellant.

(1) There was a failure of proof by the State in showing that accused was an agent of complaining witnesses and that complaining witnesses entrusted to accused any sum of money to be disbursed for them or at their direction. State v Meyers, 68 Mo. 266; State v. Brown, 171 Mo. 477. (2) The State's evidence completely failed to show that funds of the complaining witnesses rightfully came into the hands of accused as an agent, and was afterward wrongfully converted by accused to his own use with a felonious intent. State v. Casey, 207 Mo. 1; State v. Smith, 250 Mo. 351; State v. Scott, 301 Mo. 409, 256 S.W. 745; State v. Kennedy (Mo. App.), 239 S.W. 869; State v. Ruznak (Mo. App.), 15 S.W.2d 349. (3) The testimony offered by the State was inadmissible to prove agency, a rightful receiving of funds, a conversion of same thereafter, and the conceiving of a felonious intent after the receiving of any funds. It proved, if anything, the sale of a security which later was found to be worthless. State v. Meyers, 68 Mo. 266; State v. Brown, 171 Mo. 477; State v. Casey, 207 Mo. 1; State v. Smith, 250 Mo. 351; State v. Scott, 301 Mo. 409, 256 S.W. 745; State v. Kennedy (Mo. App.), 239 S.W. 869; State v. Ruznak (Mo. App.), 15 S.W.2d 349. (4) If the record in this case in its most favorable light to the State should disclose that appellant held $ 1,100 for one day's time, which sum in contemplation of law would be held to be the property of complaining witnesses, then accused held such sum as a bailee and not as an agent, and the indictment under Sec. 4079, R. S. 1929, is improper and the offense, if any, should have been charged and proved under Sec. 4081, R. S. 1929. State v. Meyers, 68 Mo. 266; State v. Castleton, 255 Mo. 201; State v. Rodgers (Mo. Sup.), 7 S.W.2d 250. (5) The court erred in rejecting evidence which negatived fraudulent intent on the part of the defendant. 16 C. J. 547. (6) The court erred in permitting the State's attorney to cross-examine John F. Thice, defendant's character witness, upon matters entirely outside the case, and in failing to discharge the jury on its own motion when the State's attorney went outside the proper scope of cross-examination and asked and elicited answers to highly prejudicial questions. Parris v. Crutcher, 189 Mo.App. 150; State v. Seay (Mo.), 222 S.W. 427; Pittman v. United States, 42 F.2d 793.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) The indictment is not challenged. It is in approved form and is sufficient. Sec. 4079, R. S. 1929; State v. Ross, 312 Mo. 490, 279 S.W. 405. (2) Assignment 4 in the motion for new trial charges the trial court with error in excluding evidence offered on behalf of the defendant. All of this evidence so offered related to acts of the defendant subsequent to the commission of the crime for which he was being tried and were offered for the purpose of negativing the existence of a felonious intent on the part of the defendant and for the purpose of showing attempted restitution. Proof of an intent to make restitution does not remove the criminality of the act. The accused could not, at the time of committing the offense, have intended both to convert the money to his own use and to restore it. State v. Lentz, 184 Mo. 223; State v. Douglas, 312 Mo. 373. (3) A reference to the testimony of John F. Thice discloses no objection by the State's attorney during the direct examination. Neither may there be found an objection by any attorney for the defendant during the cross-examination of the witness by the State's attorney. Appellant is in no position to complain because no exception was saved. State v. Townsend, 289 S.W. 570; State v. Eaton, 292 S.W. 70, 316 Mo. 995; State v. Dummitt, 2 S.W.2d 731, 318 Mo. 1185.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

On May 9, 1930, the defendant, George A. Gould, and his son, Jay M. Gould, were jointly charged, in an indictment returned by the grand jurors of Jackson County, Missouri, with the crime of embezzlement as agents. The indictment was drawn under Section 4079, Revised Statutes 1929. Defendant, George A. Gould, was granted a severance. A trial of the case resulted in a conviction of defendant. The punishment assessed was four years' imprisonment in the penitentiary. A motion for a new trial was timely filed. The court overruled this motion and sentenced the defendant in accordance with the verdict. An appeal was taken to this court.

The facts, as revealed by the evidence, are about as follows:

George A. Gould was the owner of a real estate, loan and insurance business at Independence, Missouri, under the name of George A. Gould & Company. Jay M. Gould, a son and the co-indictee in this case, was the bookkeeper and prepared the deeds, notes, deeds of trust and other papers necessary for the transaction of the real estate and loan business. Jay M. Gould had a license to practice law, and in that capacity examined abstracts of title, when it became necessary in any of the company's business deals. A daughter of George A. Gould performed the stenographic work, and a son, Roy H. Gould, had charge of the insurance business. The company enjoyed the confidence of the public. The business transacted netted an income of approximately ten to twelve thousand dollars annually. The business was owned solely by the father, George A. Gould, from whom the children received stipulated salaries. The defendant, George A. Gould, had a private office. His main duties consisted of the outside work; such as soliciting business and showing prospective customers property the company had for sale or on which they desired to negotiate loans. A part of the company's business consisted of negotiating loans on real estate and of investing their clients' money in real estate securities. The business transaction that resulted in the present charge had its origin in March, 1927. Cora B. Smith, wife of George A. Smith, at the suggestion of a friend, went to the defendant's office for the purpose of investing eleven hundred dollars in real estate securities. The defendant obtained a note for the Smiths, secured by a deed of trust on real estate, signed by Fred A. Rice, for eleven hundred dollars and delivered it to Cora B. Smith in exchange for a draft of like amount. The interest on this investment was paid to the Smiths semi-annually, by the Gould company. In December, 1928, the Rice property, on which the Smiths held a deed of trust to secure the eleven-hundred-dollar note, was sold by the Gould company for cash. The Smiths were notified, by the Gould company, that the property had been sold and that they held the eleven hundred dollars for them. In response to this notice, Cora B. Smith went to the office of the company and called on the defendant, George A. Gould. The defendant informed her that they had collected the eleven hundred dollars and at the same time suggested that he had some good property on which he could loan this money. Defendant showed Mrs. Smith various properties. In particular a house and lot owned by defendant's son, Max Gould. Defendant represented to Mrs. Smith that his son Max desired to borrow fifteen hundred dollars on this property, and that if she could obtain an additional four hundred dollars he could invest the fifteen hundred dollars in this property; that she would obtain a first deed of trust and note, signed by Max Gould and his wife. Mrs. Smith stated to the defendant that she would talk the matter over with her husband and if he agreed she would return with the additional four hundred dollars and make the investment. Mrs. Smith returned with a draft for four hundred dollars and delivered it to the defendant, George A. Gould. In return for this she received a note, purporting to have been signed by Max Gould and his wife. At the suggestion of defendant, the deed of trust and abstract were retained by the Gould company. Only the note was delivered to the Smiths.

In April, 1930, the Smiths learned that all was not well with the Gould company. Becoming alarmed over their investment, Mrs. Smith went to Independence, and, in company with an attorney, examined the records in the Recorder's office and found that the purported deed of trust, securing their note, had not been recorded. The facts disclosed at the trial, with reference to this, are as follows:

Max Gould owned the house and lot, which was pointed out to Mrs. Smith, by the defendant, as the property on which the Smiths were to have a first deed of trust. The correct description of this property was lot 76, Forbis Park, an addition to the city of Independence, Missouri. Jay M. Gould owned lot 75, Forbis Park Addition. This was an unimproved vacant lot. In the year 1922, the defendant, George A. Gould, secured for his son Max Gould, a loan of fifteen hundred dollars. Max Gould signed a note and a deed of trust conveying lot 76, above mentioned, as security for this loan. George A. Gould was the notary who took the acknowledgment to this deed of trust, and he testified that he handled the entire transaction. On May 29, 1929, five months after the deal with the Smiths was closed, the defendant, George A. Gould, negotiated a loan of eight hundred dollars for Max Gould. These eight hundred dollars were also secured by a deed of trust on lot 76, above mentioned. The deed of trust contained the following recitation:

"This deed of trust made subject to one first deed of trust for $ 1500.00 dated May 1, 1922, due five years after...