State v. Heath

• Decision Date: 25 November 1879
• Citation: 8 Mo.App. 99
• Parties: STATE OF MISSOURI, Respondent, v. WILLIAM H. HEATH, Appellant.
• Court: Missouri Court of Appeals

8 Mo.App. 99

STATE OF MISSOURI, Respondent,

v.WILLIAM H. HEATH, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 25, 1879.

1. Under a plea of autrefois acquit the burden of proof is upon the defendant, and he must be ready to prove the truth of his plea so far as respects the record of the former trial, or his plea will be overruled. If there is a question of fact involved, the jury should be sworn at once to try the case.

2. Under an indictment charging the defendant, county auditor, with embezzling public moneys received by him as agent and servant of St. Louis County, where the moneys thus received belonged to the school fund, and the defendant had no right, as auditor, to receive such moneys, an instruction that if the defendant received these moneys “while he actually held the dual relation to the county of auditor and agent, or auditor and servant, and it was his duty to receive them, not as auditor, but as agent or servant, it is immaterial whether he received them as auditor or agent, or as auditor or servant,” is bad, as telling the jury that it was immaterial whether defendant received the money as auditor or agent; and as making it a test whether it was the duty of defendant to receive the money as auditor or as agent.

3. The instruction should have been to the effect that if defendant held towards the county the relation of agent or servant, as appointed or permitted so to act by the County Court, and in fact received the moneys, not as auditor, but as such agent, then the circumstance that he was auditor, and so acted in other matters in regard to the school loans, was immaterial.

4. The relation of agent and servant within the meaning of the statute (Wag. Stats. 459) does not depend on the legal right of the appointing power to receive the moneys, or on the legal right of the agent to collect. The relation of trust and a colorable right to employ, with the acceptance of the relation, are the essential elements.

5. The fact that defendant was county auditor does not prevent his being agent for the county to collect moneys which as auditor he could not receive.

6. The assumption of the duties of agent of the county for collecting moneys, the actual collection of the money, and the claiming and receiving wages for such services, are conclusive as to the existence of the agency and service.

APPEAL from the St. Louis Criminal Court.

Reversed and remanded.H. A. CLOVER, for the appellant: The auditor had no right to receive school moneys as auditor or in any other capacity.-- The State v. Moeller, 48 Mo. 431. There was no relation of master and servant, or of principal and agent, between the county and the defendant.--Bishop's Cr. Law, sect. 333 et seq.

LEVERETT BELL and LEWIS B. BEACH, for the respondent: It is not necessary in a prosecution for embezzlement to prove any formal appointment of the accused as a servant or agent; it is sufficient to show that he was permitted to act as such.--2 Bishop's Cr. Law (6th ed.), sect. 340. And if he assumed so to act, and received the money in that capacity, he cannot deny the relation when prosecuted for embezzling it.--2 Bishop's Cr. Law, sect. 364; Ex parte Hadley, 31 Cal. 108. The indictment is good.-- The State v. Clarkson, 59 Mo. 149; The State v. Flint, 62 Mo. 393. The motion to discharge the defendant because he had not been brought to trial on the indictment before the end of the third term of the court after the indictment was found, was rightly overruled.-- Ex parte Donaldson, 44 Mo. 149.

HAYDEN, J., delivered the opinion of the court.

The defendant was tried upon an indictment charging him with embezzling public money, and convicted. The indictment contained five counts, and it was on the first and fifth of these that the defendant was convicted, the State having abandoned the others. To the indictment the defendant pleaded autrefois acquit, and to this plea the State filed a replication. The defendant demurred, and the demurrer to the replication was overruled. A motion to strike out a part of the plea was sustained. The record states that then the court below, of its own motion, entered an order, which is given, and the effect of which is that the parties appearing, “and the plea of former accquittal and the replication thereto being submitted to the court,” and it appearing that the indictment is sufficient in law to compel the defendant to answer, the plea is overruled and the defendant ordered to plead to the indictment.

This action of the court below was excepted to, and the exception properly preserved, and the ruling of the court is now complained of as error. This plea of former acquittal appears to have been summarily disposed of, but that there was error in this disposition does not appear. Since this case was called in this court the defendant has procured an addition to the record, consisting of the plea, the State's replication, and of a subsequent plea of the defendant. But there is now nothing which enables us, even if in any view we were at liberty to do so, to pass upon the merits of the plea of former acquittal. The record of the former proceedings, which is an essential part of such plea, is not before us, nor does it appear that such record accompanied the plea or was offered in the court below; though it would appear from the plea that the first indictment was found, not at the same, but at a prior term of court. Nor does it appear that any trial was demanded, or evidence offered in support of this plea; but, on the contrary, it appears that it was submitted with the replication, both parties appearing. If this is true, and we cannot assume that the record is otherwise, it would appear that the action of the court was correct. The defendant who pleads former acquittal or conviction has the burden of proof thrown upon him. The State v. Andrews, 27 Mo. 267. The record is a part of his plea; and he must be ready to prove on the spot the truth of his plea, so far as respects the record of the former trial, otherwise the plea is properly overruled. The Commonwealth v. Strother, 1 Va. Cas. 186, 232. If there is a question of fact involved, the jury are sworn at once to try the case, there being no occasion for delay upon such a plea, which can consist only of a record and facts which, if true, can readily be established.

Whether the matters stated in the replication are true, we have no means of knowing; but if it were permissible for this court, in the absence of any evidence as to the former proceedings, to consider the matter on the plea and replication, the conclusion would be that the plea constituted no defence. The counts which charged conversion of moneys received by the defendant as auditor are not in question, since the counts which correspond in the present indictment to those counts, being the first, second, third, and fifth of the first indictment, were discontinued before arraignment on the trial below. The fourth count in the first indictment, which corresponds to the first and fifth counts of the present--on which the defendant was tried in the court below,-- was bad on its face, and upon it the defendant could not have been legally convicted on any evidence whatever. This being the case, the defendant was never in jeopardy, and his plea of former acquittal could not have availed him. Colman v. Tennessee, 97 U. S. 521; 1 Archb. Cr. Pr. & & Pl. (Pomeroy's ed.) ^*112; 1 Whart. Cr. Law, sect. 589.

It is apparent that of the charge of embezzling public moneys received by him as agent and servant of St. Louis County the defendant was never acquitted, except by reason of a defective indictment. The defendant, indeed, set up in his plea that during all times covered by the former and present indictment he was merely auditor of St. Louis County, and not an agent or servant as charged. But, under pretence of a plea of former acquittal, this, it is apparent, is a plea of not guilty to the two counts of the present indictment in which he is so charged. In fact the defendant, by his subsequent plea of January 18, 1879, did plead not guilty to these two counts, and applied his plea of former acquittal where it belonged--to the other counts for embezzling money charged to have been received by him as auditor. But, as stated, the State discontinued and the defendant was discharged as to the other counts, leaving the first and fifth now to be considered.

The substance of the first count is, that the defendant was appointed by the County Court to be servant and agent of the county of St. Louis to receive for safe-keeping and transfer into the county treasury certain school-moneys; that by virtue of his agency and service he received, as such agent and servant, school moneys to the amount of $143,000, which he fraudulently converted to his own use. The other count charges that the defendant was, at his request, permitted to act and become the agent and servant of the county, etc., and then follows the first.

The section of the statutes under which the defendant was indicted is as follows (Wag. Stats. 459, sect. 41; Laws 1870, p. 29):--

“If any officer appointed or elected by virtue of the Constitution of this State, or any law thereof, including as well all officers, agents, and servants of incorporated cities and towns as of the State and counties thereof, shall convert to his own use in any way whatever, or shall use by way of investment in any kind of property or merchandise, or shall make way with or secrete any portion of the public moneys, or any valuable security by him received for safe-keeping, disbursement, transfer, or for any other purpose, or which may be in his possession, or over which he may have supervision, care, or control, by virtue of his office, agency, or service, every such officer, agent, or servant shall, upon conviction, be punished by imprisonment in the penitentiary not less than five years.”

The fact of the embezzlement of the school moneys by the defendant was proved beyond dispute. The question is,...