State v. Harmon

• Decision Date: 16 November 1891
• Parties: The State v. Harmon, Appellant
• Court: Missouri Supreme Court

18 S.W. 128

106 Mo. 635

The State v. Harmon, Appellant

Supreme Court of Missouri, Second Division

November 16, 1891

Appeal from Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.

The defendant was indicted in the circuit court of Moniteau county at the September term, 1889, for embezzlement and grand larceny. The indictment contains fifteen counts. The first was for embezzlement; the remaining fourteen were for grand larceny. The evidence showed that the defendant was the clerk and employe of a mercantile firm, Cavers & Thomas, in California, Missouri.

The evidence on the part of the state tended to show that the other clerks watched the defendant and discovered many irregularities in the taking of groceries and failing to charge them to himself and in taking money from the drawer. There was evidence of admissions also, but they were qualified to such an extent that it was wholly a question of fact to be determined by the jury, how far defendant admitted any guilt. The jury found defendant guilty of petit larceny. At the close of the evidence, the state entered a nolle as to the first count, the only one for embezzlement.

The court instructed the jury as follows: "1. The jury are instructed that by the second, third, fourth, fifth, sixth seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth counts in the indictment defendant is charged with grand larceny, and the jury may convict the defendant upon either or all of said counts, either of larceny or embezzlement. If the jury believe and find from the evidence that the defendant, at the county of Moniteau and state of Missouri, at any time within three years before the finding of the indictment, feloniously took, stole and carried away any of the money or property of Cavers & Thomas, described in either of said counts, of the value of $ 30 or more, they will find the defendant guilty as charged in such counts, and assess his punishment at imprisonment in the penitentiary for a period not less than two years, nor more than five years and, if the jury find that the defendant stole said property as aforesaid, within one year before the finding of the indictment, and that it was of less value than $ 30, they will find the defendant guilty under said count, of petit larceny, and assess his punishment at imprisonment in the county jail not exceeding one year, or by fine not exceeding $ 100, or by both such fine and imprisonment.

"2. If the jury believe and find from the evidence that, within three years prior to the finding of the indictment, the defendant was a clerk in the copartnership firm of Cavers & Thomas, at Moniteau county, Missouri, and that defendant was at the time not under the age of sixteen years, and at said county, and within said time, defendant did, without the assent of said Cavers & Thomas, convert to his own use or embezzle any of the money or property of said Cavers & Thomas, as described in either of the said counts in the indictment, of the value of $ 30 or more, that came under his care or into his possession by virtue of such employment they will find the defendant guilty as charged in such count of embezzlement and assess his punishment at imprisonment in the penitentiary for a period of not less than two years, nor more than five years. But if the jury shall find that said property or money so converted or embezzled, was of less value than $ 30, and that the same was taken and embezzled by the defendant as aforesaid, within one year before the finding of the indictment, they will find the defendant guilty as charged in such count, and assess his punishment at imprisonment in the county jail for a period not exceeding one year, or by fine not exceeding $ 100, or by both such fine and imprisonment. And, if the jury find that the defendant is not guilty of any offense, they will so state in their verdict.

"3. The jury are instructed that it is not necessary in this case, in order to authorize the jury to find the defendant guilty of grand larceny or of embezzlement of $ 30 or more for the state to prove that the amount of $ 30 was taken at the same time or on the same day. But, if the jury believe and find from the evidence that the defendant formed a design to embezzle, or to steal, take and carry away, the property of Cavers & Thomas, and that in pursuance of such formed design he did, within three years before the finding of the indictment, take, steal, carry away or embezzle the property of said Cavers & Thomas, described in either of the counts of the indictment, of the value of $ 30, that is sufficient.

"4. If the jury believe and find from the evidence that within three years before the finding of the indictment the defendant was a clerk of George Cavers and Albert E. Thomas and that he had authority to receive money for the sale of goods, and put the same in the money drawer of said Cavers & Thomas, and take change therefrom, and that he did receive such money for the sale of the goods of said Cavers & Thomas and put the same into the money drawer aforesaid, and feloniously take from said money drawer other money belonging to the said Cavers & Thomas as described in either the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth or fourteenth counts of the indictment, in amounts of $ 5 at a time, until the whole sum so taken amounted to $ 30 or more, with intent to convert the same to his own use, they will find the defendant guilty of grand larceny, as charged in such count.

"5. The jury are instructed that they are the sole judges of the credibility of the witnesses and the weight of their evidence. But in this connection the jury are further instructed that, while under the laws of this state the defendant is a competent witness in his own behalf, in determining the weight and credibility of his evidence, the jury should take into consideration the fact that he is the person on trial and the interest he has in its result. If the jury have a reasonable doubt of defendant's guilt, they will acquit him; but a doubt to authorize an acquittal should be a substantial doubt, arising from the evidence and not a mere possibility of defendant's innocence."

Defendant objected to all said instructions except the last, but the court overruled the objections and gave all said instructions, to which action of the court, the defendant duly excepted.

The defendant offered instructions as follows: "1. The jury are instructed that the finding of the indictment against defendant is no evidence of his guilt; that he stands in the eyes of the law clothed with the presumption of innocence; and that presumption attends him in every stage of the trial; that, while in civil cases it is the duty of a jury to find a verdict upon a preponderance of the evidence, the rule of law is not so in criminal cases; that, before you can find defendant guilty, you must be satisfied from the evidence in the case that the defendant is guilty in manner and form as charged in the indictment beyond a reasonable doubt. A reasonable doubt means a substantial doubt touching the defendant's guilt, and not a mere possibility of his innocence.

"2. It devolves upon the state to prove to your satisfaction, by competent evidence, that the defendant, while in the employment of the firm of Cavers & Thomas, as a clerk in their store, did either feloniously or unlawfully take and convert to his own use, with the fraudulent intent to deprive the owners of the same without paying therefor, either some specific sum or sums of money, or some specific article or articles of merchandise, belonging to said firm and specified in the indictment, and you cannot find him guilty unless such proof has been made; facts alone, and not mere conjecture or suspicion, must be your guide in arriving at a verdict.

"3. The jury are instructed that it is not sufficient, in order to warrant the conviction of the defendant, for the state to prove a general course of dealing or acting by defendant with reference to the money or property of the firm of Cavers & Thomas; but the state must show by evidence, to the satisfaction of the jury, beyond a reasonable doubt, as defined in these instructions, that the defendant wrongfully and fraudulently appropriated to his own use certain specific property, or certain specific sums of money belonging to said Cavers & Thomas, and must also prove the specific sum or sums of money, or the specific property taken, and, unless this proof has been made, they must find the defendant not guilty.

"4. Before the jury can convict the defendant of any grade of embezzlement, they must be satisfied from the evidence beyond a reasonable doubt, that the defendant did, knowingly and intentionally, while in the employ of Cavers & Thomas, as clerk in their store, take and convert to his own use money, goods or merchandise of some value or amount, without either paying or accounting for the same.

"5. The jury are instructed that they should consider with care and caution the evidence of verbal statements alleged to have been made by the defendant, taking into consideration the liability of witnesses to misunderstand or misquote, or to fail to remember the words used.

"6. The jury are instructed that, in considering the defendant's guilt or innocence of the offense charged in the indictment, they will take into consideration all the facts and circumstances detailed in the evidence, including the evidence of defendant's previous good character, and if, after giving all the evidence in the case due weight and consideration, they have a reasonable doubt of defendant's guilt, they must give him the benefit of such doubt and acquit him. A reasonable doubt, as defined in these instructions, means a substantial doubt of his guilt, and not...