State v. Hager, 35097.

• Decision Date: 11 March 1937
• Docket Number: No. 35097.,35097.
• Citation: 102 S.W.2d 579
• Parties: STATE v. HAGER.
• Court: Missouri Supreme Court

102 S.W.2d 579

STATE v. HAGER.

No. 35097.

Supreme Court of Missouri, Division No. 2.

March 11, 1937.

Appeal from Circuit Court, Buchanan County; Ferd J. Frankenhoff, Judge.

Joseph Hager was convicted of having feloniously disposed of property of a building and loan association without authority and without receiving any valuable consideration therefor, and he appeals.

Judgment reversed.

Randolph & Randolph, of St. Joseph, for appellant.

Roy McKittrick, Atty. Gen., Wm. Orr Sawyers, Asst. Atty. Gen., and Max Wasserman, Sp. Counsel, of Jefferson City, for the State.

WESTHUES, Commissioner.

Appellant was convicted of a violation of section 5610, Laws 1931, page 157 (Mo. St.Ann. § 5610, p. 801). That is, of having feloniously disposed of property of the Provident Building & Loan Association of St. Joseph, Mo., without authority and without receiving any valuable consideration therefor. Appellant was the assistant secretary of the corporation. He received a sentence of two years' imprisonment in the penitentiary from which he appealed.

At the close of all the evidence, appellant, defendant below, asked the trial court to direct a verdict of not guilty, for the reason that the evidence failed to sustain the charge contained in the information. This question was preserved for our review. Since we have concluded that appellant's instruction in the nature of a directed verdict should have been given, we need not discuss the many other assignments of error presented by appellant.

Considering the evidence in the light most favorable to the state, it discloses the following state of facts: The Provident Building & Loan Association was a corporation engaged in the loan business. This company will be hereinafter referred to as the loan company. H. S. Smith was the secretary and the active manager of the loan association, and defendant Hager was the assistant secretary. The H. S. Smith Investment Company, with offices located in the same building, was a corporation of which H. S. Smith was president, and the defendant, vice president. One set of clerks kept the records of both companies. The operating expenses were divided between the two companies.

On May 20, 1926, Mr. and Mrs. D. W. Cronkite secured a loan from the loan company in the sum of $3,600, which indebtedness was evidenced by a note and secured by a deed of trust on real estate. Later the Cronkites transferred this property to Elmer Beanblossom. Thereafter Beanblossom made the monthly building and loan payments, until the year 1932, when he found it difficult to make them. A balance of approximately $1,750 remained due upon the $3,600 note. Negotiations were entered into for a straight loan for the purpose of discharging the note and deed of trust held by the loan company. The evidence disclosed that defendant Hager was instrumental in arranging a loan for Beanblossom with the investment company. This transaction took place during the months of May and June. Beanblossom executed a new note and deed of trust in the sum of $1,750 in favor of the investment company. The investment company in turn sold this note and deed of trust to a Mrs. Faust, who paid the company $1,550 on May 13, and $200 on the 2d day of June, 1932. The note of $1,750 was thereupon transferred to Mrs. Faust. The loan company in the meantime had transferred the $3,600 note and deed of trust to the investment company. This note was canceled and the deed of trust satisfied of record and returned to Beanblossom. The actual balance due on this $3,600 note was $1,735.73. The difference between that figure and $1,750 paid the expenses. An employee of both companies testified that she was directed to draw a check on the investment company, payable to the loan company, for $1,735.73. This check was accepted by the loan company, and the Cronkite-Beanblossom note of $3,600 was marked paid and the account closed. This check, however, was not signed by the officers of the investment company and, therefore, could not be cashed. It was carried in a drawer of the loan company as a cash item, and on the books of the investment company as a floating check, which the employees explained meant that the check was an obligation of the company in the form of an uncashed check. The evidence does not disclose how long this floating check was carried as a cash item by the loan company. The employees testified that the cash on hand was in excess of the amount of the check until September 23, 1932, when the cash on hand, as...