State v. Hailey

• Decision Date: 12 November 1942
• Docket Number: 38085
• Citation: 165 S.W.2d 422,350 Mo. 300
• Parties: State v. Steve Hailey, Appellant
• Court: Missouri Supreme Court

165 S.W.2d 422

350 Mo. 300

State v. Steve Hailey, Appellant

No. 38085

Supreme Court of Missouri

November 12, 1942

Appeal from Barry Circuit Court; Hon. Gordon Dorris, Judge.

Affirmed.

Gene Frost and Royle Ellis for appellant.

(1) The court erred in refusing to sustain defendant's motion to jurors Pleas Carlin, Joe Davis, Allen Long, Stephen Arnaud Jesse Marshall and Arthur Bounous, same being six additional jurors picked up by the sheriff under order of the court. These pick up jurors all came from the same community, the jurors Stephen Arnaud, Arthur Bounous, Pleas Carlin, being active members of the Anti Thief Association, and Jesse Marshall had belonged to the same, said jurors coming from the only community in the county where an Anti Thief Association was existing. The court has the right to order additional jurors to complete the panel, and the sheriff has the right to summons such jurors, but it should not be done in a manner so as to prejudice the rights of the defendant. R. S. 1939, sec. 707. This section has many times been held to be directory only. Should it be disregarded, that fact would not be grounds for new trial under circumstances from which it cannot be inferred that some prejudice resulted to defendant by reason thereof. State v. Pine, 57 S.W.2d l. c. 1089. (2) The demurrer at the close of the evidence for the State, and again at the close of all the evidence should have been sustained. A prima-facie case of guilt is not made so long as every fact adduced by the proof may be true, and the defendant yet be innocent. State v Fowler, 265 Mo. 190; State v. Francis, 199 Mo 671. (3) The court erred in giving Instruction 4 to the jury, because in said instruction the jury were required to find that defendant unlawfully converted the money received by him, to infer therefrom the criminal intent, when the instruction should have required the jury to find that defendant feloniously and fraudulently converted the money. This point has been directly passed upon by this court as error. State v. Gillum, 77 S.W.2d 110. (4) The court erred in refusing to give Instruction I as requested upon behalf of defendant because there was evidence that defendant accepted county warrants in payment of taxes, and had to hold these warrants until they were payable, thereby causing delay in making settlements. R. S. 1939, sec. 11082. (5) The court erred in refusing to give Instruction L offered upon behalf of defendant for the reason that he was entitled to take out his commissions, the commissions belonged to defendant and did not need to be paid into the county treasury. State ex rel. Douglas County v. Alsup, 91 Mo. 172; State ex rel. v. Hawkins, 169 Mo. 615; State ex rel. Buchanan County v. Fulks, 296 Mo. 614.

Roy McKittrick, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance and fully apprises the defendant of the crime and charge. Sec. 4478, R. S. 1939; State v. Baker, 285 S.W. 416. (2) The verdict is sufficient in form and substance. State v. Shour, 196 Mo. 202, 95 S.W. 405; State v. Dickens, 285 S.W. 445; Sec. 4457, R. S. 1939. (3) The court committed no error in refusing to sustain defendant's objection to the six additional jurors selected by the sheriff of Barry County, Missouri. State v. Penro, 23 S.W.2d 87; State v. Hamilton, 102 S.W.2d 642. (4) The court properly overruled the demurrer of the State's case. State v. Bigley, 247 S.W. 169; State v. Meyers, 44 S.W.2d 71; State v. Ring, 141 S.W.2d 57, 346 Mo. 290; Laws 1933-1934 (Ex. Sess.), pp. 152-153; Laws 1935, p. 408; State v. Pate, 268 Mo. 431, 188 S.W. 139; State v. Noland, 111 Mo. 473, 19 S.W. 715; State v. Matkins, 34 S.W.2d 1. (5) The court properly refused to give Instruction L requested by the appellant. State v. Peterson, 154 S.W.2d 134. (6) The court did not commit reversible error in refusing to give appellant's Instruction I. See 11082, R. S. 1939; State v. Stanton, 68 S.W.2d 811; State v. Nienaber, 153 S.W.2d 360. (7) The court committed no error in the giving of Instruction 4. State v. Baker, 285 S.W. 416; State v. Schnelt, 108 S.W.2d 377, 341 Mo. 241. (8) All other assignments of error in motion for new trial are abandoned by the appellant in his brief, therefore, are not for review by this court. State v. Mason, 98 S.W.2d 574.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Steve Hailey, former collector of Barry county, Missouri, appeals from a judgment imposing a sentence of two years' imprisonment for the embezzlement of public moneys. Issues involving the selection of extra veniremen, the sufficiency of the evidence, and the giving and refusing of instructions are presented.

Appellant had been previously tried. During the progress of the voir dire examination of the jury, the court ordered the sheriff to pick up six men to complete the panel. Appellant asserts that these prospective jurors came from the same community of the county; that three were members of an Anti Thief Association and a fourth had been a member; and presents the point that the selection of the extra jurors should not be in such manner as to prejudice the rights of an accused. He cites Sec. 707, R. S. 1939, and State v. Pine, 332 Mo. 314, 319[1], 57 S.W.2d 1087, 1089[1-3]. Section 707 directs, in part, "that if it shall be necessary to fill vacancies in the jury panel for the trial of any one case the court may in its discretion order the sheriff to summons from the bystanders a sufficient number of qualified persons to fill such vacancies in such case." Our holdings that statutory provisions relating to the impaneling of jurors are directory and a failure to strictly comply therewith is not ground for reversal in the absence of a showing warranting an inference of prejudice to an accused conform to the quoted provision. State v. Perno (Mo.), 23 S.W.2d 87, 88[2]. The holding in State v. Pine is to that effect. The sheriff summoned these men from the northern part of the county, some thirteen to twenty miles from the county seat. He testified that he knew the case had been previously tried; that he sought respectable citizens; that he gave no thought to membership in an Anti Thief Association; that he had no intimation any of the men, with possibly one exception, belonged to such an association; that the possibility of membership therein did not occur to him until appellant's counsel developed the fact on the voir dire examination. The record does not establish partiality on the part of the sheriff. The object of the Anti Thief Association was shown to be the protection of the property of the members. These jurors were from three different townships. There was no showing of prejudice against appellant or the offense for which he was charged on the part of any of them. The contention of appellant is disallowed. State v. Hancock, 320 Mo. 254, 259(III), 7 S.W.2d 275, 277[6]; State v. Wheeler, 318 Mo. 1173, 1177(II), 2 S.W.2d 777, 778[2]; State v. Hamilton, 340 Mo. 768, 777[12-14], 102 S.W.2d 642, 647[17-19]; Sec. 711, R. S. 1939.

We think a case was made. The information charged appellant with embezzling $ 22,815.06 of the public moneys. Appellant's term expired the first of March, 1935, and the transactions involved occurred during his last year as county collector. O. P. Brite, whose testimony was offered by the State, was appellant's chief deputy and had served fourteen years in the office. It was the practice in the office to make carbon duplicates of the original tax receipts at the time of the payment of the taxes. These receipts were numbered and dated. The original was given the taxpayer. The carbon copy was retained and bound in book form. The number of the receipt and date of payment would also appear on the proper tax book of the county. Appellant's abstract (or cash) book would be made up from the duplicate receipts. Appellant's monthly statements, filed with the county collector (consult Sec. 9927, R. S. 1929, Sec. 11098, R. S. 1939), showing the amounts due the different funds, were taken from this abstract book; and his annual final settlements with the county court (consult Secs. 9918, 9919, 9922, 9935 (repealed and reenacted Laws 1933, p. 454) R. S. 1929) were taken from the monthly statements for the fiscal year involved. There was testimony showing that a tabulation of appellant's monthly statements for the year ending March 1935, showed a total of $ 226,178.88. His corresponding annual settlement accounted for $ 222,027.20 and, as we read part of the record, asked credit for $ 3,724.09 as his commission of 1-3/4%, a total of $ 225,751.29. Appellant's argument mentions testimony tending to establish that the discrepancy between the total of his monthly statements and his final settlement ($ 427.59) was to be attributed to the "clerk's cost" (established to be $ 427.02), not shown on the final settlement, leaving a balance unaccounted for of 57 cents. The State, however, relied upon appellant's duplicate tax receipts for the year prior to March, 1935, to make a case. The amount shown by said duplicates totaled $ 240,980.27. The difference between this sum and the total of appellant's monthly statements or his annual final settlement exceeded $ 14,800. Appellant's position here is that his annual settlement failed to show his commission of 4% (in addition to his commission of 1-3/4%) on back taxes; failed to show the "clerk's costs"; failed to show "postage"; failed to show "penalties" on back taxes; failed to show "commission on merchants' taxes"; that these items were reflected in the duplicate receipts, and the State failed to establish that they did not consume the discrepancy between appellant's receipts and his reports. Appellant's monthly...