State v. Jennings

• Decision Date: 24 June 1889
• Citation: 98 Mo. 493,11 S.W. 980
• Parties: STATE v. JENNINGS.
• Court: Missouri Supreme Court

11 S.W. 980

98 Mo. 493

STATE v. JENNINGS.

Supreme Court of Missouri.

June 24, 1889.

EMBEZZLEMENT.

Under Rev. St. Mo. § 1320, which provides for the punishment of any clerk, agent, etc., who shall embezzle any money, property, etc., which shall come into his possession "by virtue of his employment," an agent whose duties expired December 20th can be convicted of embezzlement, where he takes the money of his late employer on December 27th.

Appeal from St. Louis criminal court; GARRET VAN WAGGONER, Judge.

Joseph G. Lodge, for appellant. The Attorney General and Thomas B. Harvey, for the State.

SHERWOOD, J.

The defendant in this case was indicted for embezzlement, the indictment containing nine counts. The court refused to compel the state to elect on which count it would proceed, and at the close of the testimony a nolle was entered as to all the counts but the last, on which the defendant was found guilty, and his punishment assessed at four years in the penitentiary. The evidence to support the verdict of guilty was ample, and the transaction extended through a considerable period of time, and the precise dates at which any particular embezzlement occurred, as is usual in all such cases, could not with any degree of certainty be ascertained. The defendant has appealed here, and assigned several errors as grounds for reversing the judgment of the lower court.

1. In regard to the instructions given on behalf of the state, the same line of remark is applicable to the first and third as in the case of State v. Pratt, ante, 977, already decided. In the statement prepared by counsel for defendant the first and third instructions aforesaid are the only ones given, whereas there were seven given in all, which placed the matters at issue very fairly before the jury, and the second instruction was as follows: "The jury are instructed that the mere conversion of money to the agent's use after receiving same, and a failure to pay it over, does not constitute the crime of embezzlement, charged in the indictment, but there must be in the mind of the agent at the time of such conversion a felonious intent to appropriate it to the agent's use, and to deprive the owner of it, and the jury must be satisfied by the evidence, beyond a reasonable doubt, of the existence of such felonious intent at the time of the conversion, or they must acquit the prisoner." If there had been any necessity of expressing the meaning of the court as to the words "of the use thereof, absolutely," the omitted instruction would have furnished such explanation by showing they meant to deprive the owner of the money embezzled. Besides, that instruction contained a clause respecting reasonable doubt, — one always essential in criminal cases, — and the instruction also declared the necessity for establishing a felonious intent, etc., and yet counsel for defendant complain just as if no instruction were given as to reasonable doubt or as to felonious intent. But for an examination of the record we would have been led to suspect that the trial court had omitted any instruction on the points...