State v. January

• Decision Date: 05 September 1944
• Docket Number: 38973
• Citation: 182 S.W.2d 323,353 Mo. 324
• Parties: State v. Elmer R. January, Appellant
• Court: Missouri Supreme Court

182 S.W.2d 323

353 Mo. 324

State v. Elmer R. January, Appellant

No. 38973

Supreme Court of Missouri

September 5, 1944

Appeal from Madison Circuit Court; Hon. Norwin D. Houser Judge.

Affirmed.

R B. Osborn, W. A. Brookshire, Taylor Smith, Sr. and W. T. Powers for appellant; William P Elmer on the brief.

(1) The gravamen of embezzlement is fraudulent intent to deprive the owner of his property. Fortney v. Commonwealth, 162 S.W.2d 193, 290 Ky. 659. (2) Instruction 2 was error as a misdirection, in that the element of intent to permanently deprive the company of the money was omitted. (3) Instruction 3 was error as a misdirection, in that converting to use with intent to deprive the owner of the use, was not required to be permanently done. (4) Instruction 3 is error in directing jury to infer intent in embezzlement where intent must be proven by direct or circumstantial evidence. All the jury had to find under this instruction was the facts in the first part of the instruction to be true, although the court had instructed them such facts did not warrant a conviction. It also omitted the question of permanent conversion. (5) The Instruction 4 is error. There was no evidence of restoration of embezzled funds upon which to base it. The bank drafts, totaling some $ 900, were offered in evidence, but there is no evidence they were restoration payments. (6) Instruction 1 should have limited the time of embezzlement between November 15 and December 10, 1940. (7) The Instruction 5 is error because there was no evidence upon which to base it -- nothing in the case called for it. State v. Brown, 270 S.W. 275; State v. Douglas, 278 S.W. 1016, 312 Mo. 373; State v. Oliver, 87 S.W.2d 644, 337 Mo. 1037. (8) The charge in the indictment is the embezzlement was from the Austin-Western Machinery Company. The instructions are on the same. The checks show there were two companies. The contract was with the Austin-Western Road Machinery Company of Illinois. This is a variance. (9) The evidence was not sufficient to prove the offense of embezzlement. Our argument sets out the reasons for this assignment. (10) The court erred in excluding the cashier's check, Exhibit A. It was competent and legal and material evidence. (11) The court erred in admitting parol testimony as to the contents of the contract. The proper foundation was not laid by the testimony offered. The contract was in possession of the company and it was not shown the officer who kept the records did not have it. Notice to defendant's attorney was not served and defendant did not have it. (12) The court erred in holding the contract proven by the testimony of Kerstann, O'Farrell, McIlrath. They did not purport to state the full contents of the contract but only parts. The testimony does not show what the contract provided as to when and how defendant should account for moneys collected. There could be no embezzlement until defendant was required to account. The State failed to make this proof in the contract. And also failed by other testimony to show when defendant should account. (13) The contract was abrogated by the sale of the warrants to defendant, and was never restored, set aside, and it was error to consider it in force after December 10, 1940. (14) Endorsing the name of Mr. Kerstann on the information for limited and certain purposes and permitting him to thereafter testify to the contents of the contract, was error; and not within the discretion of the court and the right to give the additional testimony was not ordered. (15) Accused had an interest in the money collected and there could not be any embezzlement as long as such interest continued and it would continue until a demand was made upon him for settlement. 20 C.J., p. 417; State v. Wise, 186 Mo. 42, 84 S.W. 954; State v. Knowles, 185 Mo. 141, 83 S.W. 1083; 20 C.J. 444, sec. 33. (16) In this case a demand was necessary in order to fix liability. None was made or the time of payment had to be definitely fixed in the contract and proven as a part of the contract. 20 C.J. 429 (17), Note Wis. Case, p. 430; Melrath v. State, 138 Wis. 120, 13 Am. St. Rep. 1012; Prinslow v. State, 140 Wis. 131, 121 N.W. 637; State v. Knowles, above; State v. Britt, 213 S.W. 425; State v. Moreaux, 254 Mo. 398, 162 S.W. 158; State v. Porter, 26 Mo. 201. (17) A demand is necessary where a definite time for payment is not fixed by the contract. 20 C.J. 432-3.

Roy McKittrick, Attorney General, and L. I. Morris, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance under the statutes and charges defendant with the crime denounced as embezzlement. Sec. 4471, R.S. 1939; State v. Adams, 300 S.W. 738, 318 Mo. 712; State v. Woodward, 130 S.W.2d 474; State v. Ross, 279 S.W. 405, 312 Mo 490; State v. McWilliams, 267 Mo. 437, 184 S.W. 96; State v. Blakemore, 126 S.W. 429, 226 Mo. 560; State v. Thompson, 55 S.W. 1013, 155 Mo. 300; State v. Lentz, 83 S.W. 970, 184 Mo. 223; State v. Pratt, 11 S.W. 977, 98 Mo. 482; State v. Cochran, 80 S.W.2d 182, 336 Mo. 649. (2) Assignments of error, general in character, will not be considered for review by this court. Sec. 4125, R.S. 1939; State v. Kennon, 123 S.W.2d 246; State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Scott, 113 S.W. 1069, 214 Mo. 257; State v. Anno, 296 S.W. 825; State v. Nienaber, 148 S.W.2d 1024, 347 Mo. 615; State v. Kernack, 7 S.W.2d 432; State v. Adams, 300 S.W. 738, 318 Mo. 712; State v. Kenyon, 126 S.W.2d 245. (3) Evidence introduced by the State in this instance is sufficient to sustain a conviction for embezzlement. Sec. 4471, R.S. 1939; State v. Gould, 46 S.W.2d 886, 329 Mo. 828; State v. Scott, 256 S.W. 745, 301 Mo. 409; State v. Kennedy, 239 S.W. 869; State v. Gebhart, 119 S.W. 350, 219 Mo. 708; State v. Moreaux, 162 S.W. 158, 254 Mo. 398; State v. Hedges, 295 S.W. 575. (4) The assignment in appellant's motion for a new trial that the court failed to correctly instruct on all the law, is insufficient. State v. Bagby, 93 S.W.2d 241, 338 Mo. 951; State v. Gregory, 96 S.W.2d 47, 339 Mo. 133. (5) The verdict in this cause is responsive to the charge in the information and is in proper and approved form. Sec. 4471, R.S. 1939; State v. Shaw, 95 S.W. 405, 196 Mo. 202; State v. Woodward, 130 S.W.2d 474; State v. Shour, 196 Mo. 202, 95 S.W. 405. (6) The court did not err in overruling defendant's motion for a new trial filed at the close of State's case. State v. Barr, 78 S.W.2d 104, 336 Mo. 300; State v. Lebo, 98 S.W.2d 695, 339 Mo. 960; State v. Meadows, 51 S.W.2d 1033, 330 Mo. 1020; State v. Williams, 108 S.W.2d 177. (7) The court did not err in overruling defendant's motion for a new trial, filed at the close of the whole case. State v. Ring, 141 S.W.2d 57, 346 Mo. 290; State v. Bigley, 247 S.W. 169; State v. Myers, 44 S.W.2d 71. (8) Allocution was granted defendant. Sec. 4102, R.S. 1939; State v. Madden, 24 S.W.2d 1003. (9) The court did not err in permitting the names of witnesses to be endorsed on the information. Sec. 3933, R.S. 1939; State v. O'Day, 1 S.W. 759, 89 Mo. 559; State v. Cook, 3 S.W.2d 365, 318 Mo. 1233; State v. Wilson, 12 S.W.2d 445; State v. Lowry, 12 S.W.2d 469; State v. Robinson, 172 S.W. 598, 263 Mo. 318; State v. Derrington, 137 S.W.2d 468; State v. Williams, 12 S.W.2d 445, 321 Mo. 564; State v. Scovill, 15 S.W.2d 931; State v. Hefflin, 89 S.W.2d 938, 378 Mo. 236, 103 A.L.R. 1301. (10) The court did not err in admitting witness W. A. Kerstann to testify in rebuttal testimony. State v. Cook, 3 S.W.2d 365, 318 Mo. 1233; State v. Jennings, 34 S.W.2d 50, 326 Mo. 1085; State v. Cook, 3 S.W.2d l.c. 367. (11) No error was committed by court in admitting testimony in permitting witnesses, O'Farrell and McIlrath to testify as to contents of a contract. Sec. 4125, R.S. 1939; State v. Buckner, 80 S.W.2d 167; Mo. Stat. Ann. 3735, p. 3275. (12) The court has a wide discretion in permitting cross-examination of defendant, concerning matters pleaded in the information. Sec. 4125, R.S. 1939. (13) No error on the part of the court to permit plaintiff to examine R. B. Osborne, concerning notice to produce copy of alleged contract. Sec. 4125, R.S. 1939. (14) No error in admitting in evidence county warrants. Sec. 4125, R.S. 1939; State v. Wilson, 143 S.W. 534, 161 Mo.App. 301; State v. Coleman, 84 S.W. 978, 186 Mo. 151, 69 L.R.A. 381; State v. Allen, 246 S.W. 946; Crim. Law, Mo. Digest, 1141 (2). (15) No error in excluding from evidence a bank draft and check. Sec. 4125, R.S. 1939; See Points (11), (13), and (14). (16) Change of venue not a question to be raised in motion for new trial, as such question can only be raised prior to trial of cause. Secs. 3767-68, R.S. 1939; State v. Mispagel, 207 Mo. 557, 106 S.W. 513; State v. Wilson, 66 Mo.App. 540; State v. Fluesmeier, 1 S.W.2d 133, 318 Mo. 803; State v. Sheets, 289 S.W. 553; State v. Fischer, 249 S.W. 46, 297 Mo. 164. (17) All assignments of error in motion for new trial not briefed, are considered abandoned, and not subject to review by this court. State v. Mason, 98 S.W.2d 574. (18) Court did not err in admitting testimony of witnesses since their testimony was strictly rebuttal. State v. Baker, 285 S.W. 82; State v. Cook, 3 S.W.2d 365, 318 Mo. 1223; 9 Mo. Digest, sec. 628 (2) Crim. Law. (19) No error was committed in permitting Prosecuting Attorney to cross-examine defendant on matters brought out in examination in chief. Secs. 3692, 3735, R.S. 1929; State v. Pierson, 85 S.W.2d 48; State v. Burgess, 193 S.W. 821; State v. England, 12 S.W.2d 37; State v. Williams, 87 S.W.2d 175; State v. Scott, 58 S.W.2d 275; State v. Edmundson, 218 S.W. 864; State v. Robinson, 130 S.W.2d 530. (20) The court committed no error in giving plaintiff's instructions 1, 2, 3, 4 and 5, as same have...