State v. Harrison

• Decision Date: 10 June 1941
• Docket Number: 37470
• Parties: The State v. A. Harvey Harrison, Appellant
• Court: Missouri Supreme Court

152 S.W.2d 161

347 Mo. 1230

The State v. A. Harvey Harrison, Appellant

No. 37470

Supreme Court of Missouri

June 10, 1941

Appeal from Circuit Court of City of St. Louis; Hon. Edward M Ruddy, Judge;

Affirmed.

H P. Lauf and John O. Bond for appellant.

(1) The evidence was insufficient to prove a case of larceny because it was essential to show an unlawful taking or a trespass and since the State's own evidence positively showed that there was no unlawful taking it failed to make a case submissible to the jury. State v. Casey, 207 Mo. 1 105 S.W. 645; State v. Fink, 186 Mo. 50, 84 S.W. 921; State v. Harris, 336 Mo. 1134, 82 S.W.2d 877; State v. Cochran, 336 Mo. 649, 80 S.W.2d 182. (2) There was a fatal variance between the crime charged in the indictment and the proof introduced at the trial. Art. II, Sec. 22, Mo. Const.; State v. Grisham, 90 Mo. 164, 2 S.W. 223; State v. Fischer, 297 Mo. 164, 249 S.W. 46; State v. Mispagel, 207 Mo. 557, 106 S.W. 513; State v. Fay, 65 Mo. 490; State v. Wright, 95 S.W.2d 1158; State v. Kroeger, 47 Mo. 530; State v. Jeffords, 64 S.W.2d 241; State v. Murphy, 141 Mo. 267. (3) The verdict and judgment in this case are erroneous on the face of the record for the indictment fails to allege the value of the check taken so that defendant has been convicted of grand larceny, whereas the indictment charges him with petty larceny only; thus defendant was convicted of a different crime than that of which the indictment charged against him and there is a fatal variance on the face of the record proper. State v. Pedigo, 71 Mo. 443; State v. Fischer, 297 Mo. 164, 249 S.W. 46; Secs. 4456, 4461, R. S. 1939; Secs. 4064, 4069, R. S. 1929; People v. Silbertrust, 86 N.E. 203; State v. Fink, 186 Mo. 57, 84 S.W. 921; State v. Murphy, 141 Mo. 267.

Roy McKittrick, Attorney General, and Tyre W. Burton, Assistant Attorney General, for respondent.

(1) The indictment is sufficient in form and substance. Secs. 3769, 4456, 4461, R. S. 1939; State v. Fischer, 297 Mo. 164, 249 S.W. 46; State v. O'Connell, 144 Mo. 387, 6 S.W. 175; 36 C. J., p. 827, sec. 304; State v. Clice, 252 S.W. 465; Kelly's Criminal Law (4 Ed.), sec. 648. (2) The verdict is in proper form, and responsive to the charge. State v. Couch, 130 S.W.2d 529. (3) There was sufficient substantial evidence to support the verdict. State v. Fuller, 286 S.W. 45, 306 Mo. 484; State v. Bunton, 285 S.W. 97, 47 A. L. R. 783; State v. Coster, 170 Mo.App. 539, 156 S.W. 773; Fitch v. Florida, 135 Fla. 361, 125 A. L. R. 361; State v. Smith, 250 Mo. 350, 157 S.W. 319; State v. Kennedy, 239 S.W. 869; State v. Anglin, 222 S.W. 776; 36 C. J., pp. 759, 795, secs. 91, 203; Vought v. State, 135 Wis. 6, 114 N.W. 518; People v. Goldberg, 158 N.E. 681, 327 Ill. 416; State v. Gould, 329 Mo. 828, 46 S.W.2d 886. (4) The court did not err in admitting the check, State's Exhibit C, on the ground that it was alleged that the proof varied from the charge in the indictment. Sec. 3951, R. S. 1939; State v. Fike, 324 Mo. 801, 24 S.W.2d 1027; State v. Harl, 137 Mo. 252, 38 S.W. 919; State v. Long, 278 Mo. 379, 213 S.W. 436. (5) The monies charged to have been stolen were property of the State. Langer v. United States, 76 F.2d 817; Brown University v. Rhode Island College of Agriculture, 56 F. 55. (6) Assignments of error in the motion for new trial which are left out of the brief are considered as abandoned. State v. Mason, 98 S.W.2d 574.

OPINION

Ellison, J.

The appellant was charged with and convicted of grand larceny in the City of St. Louis, and his punishment assessed by a jury at imprisonment in the penitentiary for three years. He was acting director of finance of the State Social Security Commission. According to the State's evidence his duties were to oversee reports pertaining to the disbursement of certain funds by the Commission, or as he, himself, testified, he had supervision of its accounts and records, the disbursement of funds, and the auditing of accounts and bills presented. He did not have official or actual custody of its funds, or authority to open up revolving funds. On February 10, 1938, for the announced purpose of creating a revolving fund in the St. Louis office, he procured the issuance and delivery to him by said Commission of a negotiable voucher check for $ 1500, payable to the St. Louis City Social Security Commission, W. E. Uthe, Disbursing Officer, and signed, Missouri Relief Commission, Wallace Crossley, Administrator, R. F. Wayland, Disbursing Officer. The check also bore a notation which may have been a part of the signature, Missouri Federal Relief -- Geo. I. Haworth, Custodian.

The indictment substantially so described the check, but did not otherwise allege its value. Appellant took the check to St. Louis, forged the endorsement of the payee by a rubber stamp, and further endorsed it in blank for collection, and used it to purchase a boat for himself. The Social Security Commission, created by Laws Mo. 1937, p. 467, was the state agency administering the Federal funds on which the voucher check was drawn, though its name does not appear thereon. It succeeded the Missouri Relief Commission named therein, which had no statutory existence by name, but was appointed by the Governor, it seems, to disburse Federal funds. At any rate the Social Security Commission had superceded or absorbed the Missouri Relief Commission at the time here involved, and was discharging the duties formerly performed by the latter.

Appellant's assignments of error converge on these three propositions: (1) the indictment only charged petit larceny, a misdemeanor, because it failed to allege the value of the check was over $ 30, whereas the appellant was convicted of grand larceny, a felony; (2) further, the indictment did not inform appellant of the offense with which he was charged, because it alleged the check was issued by the Missouri Relief Commission, a non-existent body; (3) the evidence failed to make a prima facie case of grand larceny because it appeared from the State's own evidence that no trespass was committed in obtaining the check, thereby making the offense embezzlement if anything.

Taking up appellant's first assignment, that the indictment was wholly insufficient to support a conviction for grand larceny because it failed to allege the value of the check stolen was at least $ 30, the minimum set by Sec. 4456, R. S. 1939, Mo. Stat. Ann., p. 3061. There are several statutes which make this contention untenable. Section 3945, R. S. 1939, Mo. Stat. Ann., p. 3154, provides that (italics ours): "in any indictment for . . . stealing . . . any instrument or property, it shall be sufficient to describe such instrument or property by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile thereof, or otherwise describing the same, or the value thereof."

In State v. Fischer, 297 Mo. 164, 172, 249 S.W. 46, 48, an information charged the embezzlement of "certain money, goods, rights in action, checks, and personal property of the amount and value of $ 380.45," thus alleging the value of the embezzled property in the aggregate, but not of the checks alone. The opinion did say, as quoted by appellant in his brief, "the defendant was not correctly charged with embezzling checks, even if such checks were otherwise sufficiently described, for the reason that no value was attached to such checks so as to charge a crime in embezzling them." But an earlier paragraph of the opinion had conceded that under still another statute, now Sec. 3947, R. S. 1939, Mo. Stat. Ann., p. 3155, "it might be sufficient to describe a check by name without further description, if the amount is stated." (Italics ours.) Note that the opinion said the amount of the check, not its value. The Section 3947 referred to in that decision is much like Sec. 3945, quoted in the last paragraph, and reads as follows:

"In all other cases, whenever it shall be necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy of facsimilie of the whole or any part thereof."

Also Sec. 4461, R. S. 1939, Mo. Stat. Ann., p. 2875, provides that "if the property stolen consist of any . . . bill of exchange, draft, . . . the money due thereon, or secured thereby, and remaining unsatisfied, which in any event or contingency, might be collected thereon, . . . shall be deemed prima facie evidence of the value of the article so stolen." It was held in State v. Connell, 144 Mo. 387, 392-3, 46 S.W. 175, 176, that this statute means the amount specified in the stolen instrument shall be deemed the prima facie value of the article so stolen; and that it is unnecessary to include in the indictment the further words of the statute: "the money due thereon or secured thereby, and remaining unsatisfied." In view of these statutes and decisions, as well as the reason of the thing, the conclusion is obvious that the indictment need not state more than must be proven to make a prima facie case. A check, draft or other like instrument carries an ostensible value on its face, and in that respect is unlike goods, livestock and similar chattels.

The next assignment is that the indictment did not sufficiently advise the appellant of the offense with which he was charged because it alleged the check was issued by the Missouri Federal Relief Commission, a non-existent body, when in truth it was issued by the State Social Security Commission. Appellant's contention is not that the description in the...