State v. Hurley
| Decision Date | 19 November 1921 |
| Docket Number | No. 22950.,22950. |
| Citation | 234 S.W. 820 |
| Parties | STATE v. HURLEY. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.
Michael J. Hurley was convicted of embezzlement, and he appeals. Reversed, and defendant discharged.
Charged and convicted in the circuit court of the city of St. Louis with the crime of embezzlement as bailee, appellant prosecutes his appeal challenging the sufficiency of the testimony to warrant his conviction and alleging error on the part of the trial court in submitting the case to a Jury.
The indictment charges that the appellant "was the bailee of one hundred forty shares (140) of the capital stock of the St. Louis Street Cleaning Company, a corporation," of the value of $14,000; that said bailment was for and on the behalf of one Charles Sutter; and that, being such bailee, appellant feloniously and fraudulently embezzled and converted said stock to his own use without the consent of the said Charles Sutter and with the felonious and fraudulent intent to deprive the owner of the use thereof.
The only error complained of and earnestly urged here was the submission of the case by the trial court to the jury upon the facts adduced. It becomes our duty therefore to analyze the facts to determine the correctness of appellant's claim.
Evidence.
The material facts are undisputed. Appellant and Charles Sutter, the prosecuting witness, were office associates for several years prior to the events which led up to this criminal prosecution. They became acquainted in 1912 and during 1915 had adjoining offices in the Railway Exchange Building, during which time appellant's stenographer "did a lot of typing" for the prosecuting witness. They also used the telephone jointly, for which service each paid his part. They had free access to each other's office. Appellant was in the paint and railway supply business, and Sutter was interested in a corporation, known as the Sanitary Street Flushing & Machine Company. The latter company owned some patent rights and was involved in litigation. Witness Sutter, as president of the company, was experiencing difficulty in freeing it from litigation and placing it upon a successful course of business. In this situation, because of his association with appellant, he took him into his confidence by disclosing to him many of the business complications of the company and inviting appellant's aid. Appellant, both individually and with the assistance of his attorney, participated in several conferences involving the affairs of witness Sutter's company, and not only loaned money to said company but aided witness Sutter by indorsing paper obligations executed by said Sutter in connection with the affairs of his company.
The only controverted question in the case is as to whether or not, by reason of the assistance given Sutter by appellant, a profit or a benefit should accrue to appellant. In the view that we shall hereafter express in the case, we eliminate such facts entirely from consideration and shall consider only the undisputed facts. During the transactions mentioned witness Sutter got appellant to act as trustee for certain of the stock of his corporation which he assembled for purposes not necessary to mention here. This stock aggregated 1997.17 shares and was owned by different stockholders but, as suggested, was turned over to appellant in a trust capacity. On January 14, 1916, witness Sutter, desiring to use said certificates of stock, thus held by appellant as trustee for purposes therein explained to appellant, requested that same be delivered to him and as a protection to appellant pledged his "entire property as security" as evidenced by the letter, addressed to appellant and identified as defendant's Exhibit A:
The following is attached to Defendant's Exhibit A:
No. Shares.
C. Rowe Sutter 25 250
Charles Sutter 103 10
Mrs. Wm. H. mcCormick 44 50
Charles Sutter 105 10
M. J. Hurley 116 328
Mrs. Charles Sutter 74 250
M. J. Hurley, Trustee 118 200
Stanley M. Knight 90 25
M. J. Hurley, Trustee 120 120.57
Murray Carleton 1 142.3
D. R. Calhoun and Charles Sutter 87 319
David R. Calhoun 7 142.3
Charles Sutter 66 100
J. F. Gainer 101 50
________
1,997.17
This stock transaction involving the trusteeship was not closed and the obligations thereunder remained outstanding at the time of the trial. Subsequently witness Sutter became indebted to appellant in the sum of $3,950 on his promissory note, and in the further sum of $650 on his further and separate promissory note. To secure this indebtedness witness Sutter had specifically pledged to appellant the 140 shares of stock mentioned in the indictment. The stock thus pledged to appellant stood in the name of Henry Wood and Gotlieff Iron, but subsequently was transferred on the books to C. Rowe Sutter, a son of witness Sutter, who became owner of said stock. Appellant thereupon demanded the surrender to him of the new certificates standing in the name of C. Rowe Sutter, the then owner, and upon receipt of which he delivered for cancellation the old certificates standing in the name of Wood and Iron., Appellant then obtained from C. Rowe Sutter, the owner of the stock, or, as he contends, from witness Charles Sutter, the following agreement, identified as defendant's Exhibit C:
"May 29th, 1916.
"To Whom It May Concern: Authority is
hereby given by me to Charles Sutter to use
certain certificates of stock in St. Louis Street
Cleaning Company numbered, respectively one
hundred four (104) for one hundred thirty-nine
(139) shares and one hundred five for one (1)
share as collateral security to his (Charles Sutter)
certain promissory note of Thirty-nine
hundred fifty (3,950) dollars and interest at 6
per cent. issued to M. J. Hurley and for such
and other indebtedness owing the said M. J.
Hurley by Charles Sutter.
"[Signed] C. Rowe Sutter.
"Witness: H. M. Morehouse."
From the record it appears that the friendly relations of appellant and witness Sutter were broken over the question of division of profits growing out of an enterprise with Sutter's company, and the whole matter reached a climax in November, 1916, when appellant demanded payment of his notes. Witness Sutter sent to the office of appellant, in the first instance, the sum of $3,950, with accumulated interest, to pay the first note mentioned. Appellant then called attention to the second note for $650 and accumulated interest, and at that time notified Sutter's agent that he was on the moment of selling the collateral to satisfy his claims. Before another meeting with Sutter's agent, appellant had in fact advertised the collateral, and, the notes being in default, he demanded not only his principal and interest, but also costs of advertising, including 10 per cent. attorney's fee stipulated in the note for $656. In the meantime witness Sutter made his financial arrangements to pay both of the above-mentioned notes, with Interest, penalties, and costs, and sent one Max W. Feuerbacher, an attorney at law of the city of St. Louis, with the necessary funds to meet appellant's demands. In the meantime and in anticipation of the efforts of witness Sutter to redeem said stock, appellant consulted E. W. Mills and R. L. Shackleford, attorneys at law at Clayton, Mo., and john F. Garner, an attorney from Quincy, Ill., but licensed to practice in Missouri, as to his authority for holding said stock under the agreements set out herein and designated as defendant's Exhibits A and 0. It was the opinion of these attorneys that upon the facts stated to them, and under the above-quoted agreements, appellant would be wholly within his rights to hold said certificates of stock pending the final adjustment of his claims. Messrs. Garner and Mills were both present with appellant at the time Attorney Feuerbacher came to make tender of the amount due on said notes, including interest, penalties, and costs. Attorney Feuerbacher caused witnesses to go with him to the office of the appellant, where the tender was to be made. Present at this meeting, therefore, were E. W. Mills and john F. Garner, who were with appellant when Attorney...
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