State v. Hill

Decision Date03 April 1944
Docket NumberNo. 38859.,38859.
Citation179 S.W.2d 712
PartiesSTATE v. EDWARD HILL, Appellant.
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis. Hon. Charles B. Williams, Judge.

REVERSED AND REMANDED.

Dewey S. Godfrey, Rudolph K. Schurr and John L. Sullivan for appellant.

(1) The court erred in overruling the demurrer filed to the indictment by Edward Hill because the indictment is vague, indefinite, uncertain, ambiguous, confusing, and misleading and does not clearly inform the defendant of the charge or charges against him so as to enable him to prepare his defense. State v. Rochford, 52 Mo. 199; State v. McGinnis, 29 S.W. 842, 126 Mo. 564. (2) There is a misjoinder of causes of action or offenses in said indictment in that the indictment charges the defendant with conspiracy, a misdemeanor, and embezzlement, a felony. State v. England, 11 S.W. (2d) 1024; State v. Kurtz, 317 Mo. 380, 295 S.W. 747; Secs. 3940, 3941, 4478, 4632, R.S. 1939; State v. Mangiarachina et al., 125 S.W. (2d) 58. (3) The indictment is faulty because it contains several causes of action or offenses united in one count in that it charges the defendant in one count with a conspiracy, a misdemeanor, and embezzlement, a felony. State v. Flynn, 258 Mo. 211, 167 S.W. 516. (4) The court erred in overruling the motion to quash filed by the defendant Edward Hill to the indictment because the indictment is vague, indefinite, uncertain, ambiguous, confusing, and misleading and does not clearly inform the defendant of the charge or charges against him so as to enable him to prepare his defense. State v. Rochford, 52 Mo. 199; State v. McGinnis, 29 S.W. 842, 126 Mo. 564. (5) There is a misjoinder of causes of action or offenses in said indictment in that the indictment charges the defendant with conspiracy, a misdemeanor, and embezzlement, felony. State v. England, 11 S.W. (2d) 1024; State v. Kurtz, 317 Mo. 380, 295 S.W. 747; Secs. 3940, 3941, 4478, 4632, R.S. 1939; State v. Mangiarachina et al., 125 S.W. (2d) 58. (6) The indictment is faulty because it contains several causes of action or offenses united in one count in that it charges the defendant in one count with a conspiracy, a misdemeanor, and embezzlement, a felony. State v. Flynn, 258 Mo. 211, 167 S.W. 516. (7) The court erred in failing and refusing to sustain the demurrer to the evidence filed by the defendant at the close of the whole case because all of the evidence introduced in the trial of the case failed to show any embezzlement on the part of Edward Hill or any action on his part that would constitute him a co-conspirator in embezzlement or for the purposes of embezzling. State v. Knowles, 83 S.W. 1083; 15 C.J.S., pp. 1150-56, secs. 93, 93b. (8) The court erred in permitting the witness, Blecker, the auditor, to testify to the results of the audit made by him. (9) The court erred in admitting into evidence State's Exhibits 21 and 22 for the reason that said exhibits were shown to be books of Local 42 not kept in the ordinary course of business and not binding upon the defendant, Edward Hill. (10) The court erred in permitting the witness, Duffey, the FBI man, to testify regarding the results of a search of Orville Golden's premises and to statements made by Orville Golden while he was detained in the Federal Building on October 9, 1941, because it was not done in the presence of Edward Hill and was done after the alleged conspiracy had been completed as shown by the statements of Orville Golden, made October 9, 1941, regarding an embezzlement and conspiracy that did not conform to the proof introduced by the State. (11) The court erred in permitting the statement or confession of Orville Golden, dated October 9, 1941, State's Exhibit 32, to be introduced into evidence and read to the jury because the evidence showed it was made after the alleged conspiracy had been completed, and the things contained in the said statement or confession were not supported by the evidence introduced by the State; also there had been no evidence introduced by the State, either direct or circumstantial, to show conspiracy or embezzlement on behalf of the defendant, Edward Hill, and the alleged statement or confession is insufficient standing alone to prove conspiracy or embezzlement.

Roy McKittrick, Attorney General, and Gaylord Wilkins, Assistant Attorney General, for respondent.

(1) The court did not err in overruling the demurrer to the indictment or the motion to quash the indictment. Sec. 4478, R.S. 1939; State v. Knowles, 83 S.W. 1083, 185 Mo. 141; State v. Sovern, 125 S.W. 769, 225 Mo. 580; State v. Inks, 37 S.W. 942, 135 Mo. 678; State v. Flint, 62 Mo. 393; State v. Skinner, 109 S.W. 38, 210 Mo. 373; State v. Rosenheim, 261 S.W. 95, 303 Mo. 553; State v. Ball, 14 S.W. (2d) 638, 321 Mo. 1171; State v. Starr, 148 S.W. 862, 244 Mo. 161; State v. Wise, 84 S.W. 954, 186 Mo. 42. (2) The evidence in this case was sufficient and the court did not err in overruling the defendant's demurrer to the evidence at the close of the State's case. (3) The court did not err in permitting the witness Blecker to testify to the results of the audit made of the books and records of the International Hodcarriers' Building and Common Laborers' Union, Local 42. State v. Judge, 315 Mo. 156, 285 S.W. 718; State v. Matkins, 34 S.W. (2d) 1, 326 Mo. 1072. (4) The court did not err in admitting the cash journal and ledger in evidence, State's Exhibits 21 and 22. 2 Wharton on Criminal Evidence, sec. 809, p. 1395. (5) The court did not err in admitting the statements made by defendant Golden to the FBI man, Duffey. State v. Parr, 246 S.W. 903, 296 Mo. 406; State v. Reich, 239 S.W. 835, 293 Mo. 415; State v. Priesmeyer, 37 S.W. (2d) 425, 327 Mo. 335; State v. Stogsdill, 23 S.W. (2d) 22, 324 Mo. 105.

WESTHUES, C.

Edward Hill was convicted in the circuit court of the city of St. Louis, Missouri, on a charge of embezzlement and sentenced to imprisonment in the penitentiary for a term of three years. He appealed.

Appellant has questioned the sufficiency of the indictment and has pointed out three alleged defects; first, that the indictment is indefinite, uncertain and misleading; second, that there is a misjoinder of causes of action in that it charges the defendant with a conspiracy, being a misdemeanor, and also embezzlement, a felony; third, that the indictment contains several offenses united in one in that it charges in one count a misdemeanor and also a felony. The indictment is lengthy and verbose, covering ten pages of the state's brief. It would serve no useful purpose to embody it in this opinion and a brief statement of what it contains will be sufficient to dispose of the points urged by appellant. In the forepart of the indictment the four defendants charged are described as being members of the International Hodcarriers' Building and Common Laborers' Union of America, Local No. 42, which is affiliated with the American Federation of Labor, an international organization. The four persons charged are Earl Jenkins, Paul Hulahan, Edward Hill and Orville Golden. A severance was asked for and this trial pertains to defendant Hill. The four indictees are described as officers of the local, Hill as president, Golden as financial secretary and treasurer and Hulahan and Jenkins as business representatives. The four named held those positions from January 1, 1941, to October 10, 1941. The indictment then charges that during that time members paid into the union and to the four defendants the sum of approximately $289,000.00 as dues and initiation fees; that the defendants received that sum by virtue of their official positions held in the union. The indictment further charges that the four named entered into a conspiracy to embezzle and secrete the moneys of the union and to convert the same to their own use; that in pursuance of such conspiracy the four defendants, with intent to convert to their own use the sums of $65,339.89 and $86,015.28, being a part of the $289,000.00 collected, did destroy, conceal and withhold receipts and stubbooks evidencing the separate payments made by the union members. The indictment then charges in detail as to how the four defendants, with intent to embezzle $51,888.50 of the money collected, made false entries showing that only $41,657.50 had been collected, whereas, if true entries had been made the records would have disclosed the sum actually collected to have been $93,543.00. The indictment also charges that the sum of $120,402.50 was received by the defendants on which no record entries were made; then in a separate paragraph that the defendants did embezzle the sum of $65,339.89 and in the next paragraph that the defendants did embezzle $86,015.28. The indictment concludes as follows: That the defendants, and each of them, "did then and there unlawfully, feloniously and fraudulently embezzle, convert to their own use, and to the use of each of them, and make way with and secrete said sum of Eighty-six Thousand Fifteen Dollars and Twenty-eight Cents, ($86,015.28); and did in the manner and form aforesaid, feloniously secrete, steal, take and carry away, said sum of Sixty-five Thousand Three Hundred Thirty-nine Dollars and Eighty-nine Cents, ($65,339.89) and said sum of Eighty-six Thousand and Fifteen Dollars and Twenty-eight Cents ($86,015.28), in the total amount and sum of One Hundred Fifty-one Thousand Three Hundred Fifty-five Dollars and Seventeen Cents, ($151,355.17), contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

[1] The indictment was drawn under section 4478 R.S. Mo. (1939), Mo. R.S.A. We agree with appellant that the indictment is somewhat confusing. It contains much surplusage and many repetitions. It details the manner in which the defendants are alleged to have made false entries as to certain sums of money collected so as to cover up a...

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