State v. Knowles

• Decision Date: 22 November 1904
• Citation: 83 S.W. 1083,185 Mo. 141
• Parties: STATE v. KNOWLES.
• Court: Missouri Supreme Court

83 S.W. 1083

185 Mo. 141

STATE v. KNOWLES.

Supreme Court of Missouri, Division No. 2.

November 22, 1904.

EMBEZZLEMENT — INDICTMENT — SUFFICIENCY — OWNERSHIP OF FUND — BENEVOLENT ASSOCIATION — FUND COLLECTED FOR GRAND LODGE — LAWS OF THE ORDER — PROOF — INSTRUCTIONS — ASSUMPTION OF FACT — FLIGHT — — PRESUMPTION OF GUILT — TRIAL — COMMENTS OF COURT — REVIEW — GROUNDS FOR NEW TRIAL.

1. Under Rev. St. 1899, § 1918, making it embezzlement for any officer or member of any benevolent organization to convert to his own use any money that may have come into his hands by virtue of his office or any trust reposed in him, conversion of the funds of an unincorporated benevolent organization is an offense.

2. An indictment charging that at a certain time and place defendant was an officer of a benevolent organization, and then and there received money of the association, which he then and there converted to his own use, sufficiently alleged the time and place at which the embezzlement took place.

3. Where an official has actually converted money and fled, no demand is necessary to render him guilty of embezzlement.

4. Under Rev. St. 1899, § 2634, providing that if, on trial of a criminal cause, the constitution or powers of any corporation shall become material, the same may be proven by general reputation, oral evidence in a criminal case of the relation existing between a grand lodge of a beneficial association and the subordinate lodge from which defendant was alleged to have embezzled money rendered harmless the admission of a book of laws of the order which coincided with the oral testimony, but which was not a certified copy of the original draft of the laws, and which had not been compared with the original.

5. In a prosecution for embezzlement of the funds of a beneficial association, all the witnesses, including those of defendant, testified that a certain book contained all the laws of the society, and it was shown that the society had always operated under these rules, and that defendant had held office under them. Held, that the members of the lodge, including defendant, were estopped from questioning the authority of the book, so that it was admissible in evidence without proof that it had been compared with the original draft of the laws contained in it.

6. Where the question at issue was the ownership of the money alleged to have been embezzled, an instruction that, if the jury found certain facts, they were justified in finding that the ownership of the money was as charged in the indictment, was not a comment on the evidence.

7. Where a local lodge of a beneficial association is required by the laws of the order to collect a fund from the members, to be sent at stated intervals to the grand lodge, the local lodge has, prior to the transmission of the fund, such a property right in it as to justify alleging the ownership to be in the local lodge in a prosecution for embezzlement of the fund.

8. An instruction stating, among other things, that if the jury believed that defendant fled from justice and concealed himself at a certain place until a certain date, "at which time and place he was arrested," etc., did not assume as a fact that defendant was arrested at the time and place in question.

9. An instruction that flight raises a presumption of guilt, and may be considered in determining defendant's guilt or innocence, is not objectionable as permitting conviction on proof of flight alone.

10. Full proof of the corpus delicti, independent of defendant's confession, is not required; it being sufficient if there are extrinsic corroborative circumstances which, if taken in connection with the confession, will produce a conviction of guilt.

11. The judge has a right to question witnesses.

12. A statement in the grounds for new trial that the court erred in not giving defendant a fair and impartial trial is insufficient to raise the question of improper remarks by the court in rulings on evidence.

13. Alleged improper remarks of the judge, like those of counsel, must be made grounds of motion for new trial in order to be reviewable on appeal.

Appeal from Circuit Court, Jasper County; Jos. D. Perkins, Judge.

John B. Knowles was convicted of embezzlement, and appeals. Affirmed.

Cole, Burnett & Williams and M. A. Fyke, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

GANTT, P. J.

This is an appeal from a judgment of the circuit court of Jasper county, Mo., sentencing the defendant to the penitentiary for a term of two years from the 2d day of December, 1902.

The defendant was indicted for embezzlement. The indictment was returned into court on the 15th day of December, 1900, and is as follows:

"In the Jasper County Circuit Court. December Term, 1900.

"State of Missouri, County of Jasper — ss.:

"The grand jurors for the state of Missouri, impaneled, sworn, and charged to inquire within and for the body of the county of Jasper and state aforesaid, upon their oath, present, and charge that on or about the ____ day of ____, 1896, at the county of Jasper and state of Missouri, John B. Knowles was a member of Miners' Lodge No. 60, Ancient Order of United Workmen, a benevolent organization of Joplin, in said county, the objects and purposes of said organization being to render and secure to its members and their families financial and other mutual aid and assistance in cases of sickness and death, and being a branch or subordinate lodge of the Ancient Order of United Workmen, an incorporated benevolent organization; and the said John B. Knowles, being then and there an officer of said Miners' Lodge No. 60, to wit, Receiver, duly appointed, elected, and qualified according to the laws, rules, and regulations of said Ancient Order of United Workmen and of the bylaws of said Miners' Lodge No. 60, by virtue of his said membership, office, and official position in said Miners' Lodge No. 60, did then and there receive and have in his possession, care, custody, and control the moneys of said Miners' Lodge No. 60, to a large amount, to wit, to the sum of seven hundred and fourteen dollars and 69/100 dollars, and was by virtue of his said membership, office, and official position in said Miners' Lodge No. 60, trusted with the safe-keeping and disbursement of said moneys belonging to and being the property of said Miners' Lodge No. 60, according to the laws, rules, and regulations of said Miners' Lodge No. 60 and of said Ancient Order of United Workmen; and being so intrusted with and having the care, custody, and control as aforesaid of said moneys, he, the said John B. Knowles, the said moneys, to wit, the said sum of seven hundred and fourteen and 69/100 dollars in money, of the value of seven hundred fourteen and 69/100 dollars, of the moneys and property of and belonging to said Miners' Lodge No. 60, by him, the said John B. Knowles, received and taken into his possession, care, custody, and control by virtue of his said membership, office, and official position in said Miners' Lodge No. 60, as aforesaid, for safe-keeping and disbursement as aforesaid, did then and there unlawfully, feloniously, and fraudulently embezzle, make way with, and convert to his own use, and said sum of money, in the manner and form aforesaid, feloniously did steal, take, and carry away; and he, the said John B. Knowles, then and there on said day of 1896 did flee from the state of Missouri, from justice, and was not from said date until the ____ day of April, 1900, an inhabitant of said state nor usually resident therein, against the peace and dignity of the state."

The defendant was duly arraigned and pleaded "not guilty." The cause was continued from time to time until the December term, 1902, at which time a jury was impaneled, the evidence heard, and defendant convicted. Motions for a new trial and in arrest of judgment were filed, heard, and overruled. The time for filing the bill of exceptions was extended until February 15, 1904, and the transcript lodged in this court and docket fee paid March 24, 1904.

The evidence tends to prove that during the year 1896, and for all the time since, there was and has been a branch or subordinate lodge of the Ancient Order of United Workmen at Joplin, Mo., known as "Miners' Lodge No. 60." Of this lodge the defendant, Knowles, was the duly elected and acting Receiver during the year 1896, and particularly throughout the months of July, August, September, and October of said year. According to the testimony the Ancient Order of United Workmen of Missouri was and is an incorporated benevolent association, and Miners' Lodge No. 60 is a subordinate or branch thereof located at Joplin, Mo., which had its lodge room at the corner of Seventh and Main streets, in said city. The defendant was a member of said Miners' Lodge, and resided at the time and for a long time prior thereto in Joplin, Jasper county, Mo. Among other officers of this lodge there was a Recorder, whose duty it was to keep accurate minutes of the proceedings of the lodge, which he was required to record in a book provided for that purpose. It was his duty to attest all orders drawn on the receiver and make the semiannual reports to the Grand Lodge. There was also an officer known as a "Financier," whose duty it was to keep a full and correct account between the lodge and each member, receive all moneys for the lodge, and to pay the same to the Receiver before the close of each meeting, taking his receipt therefor. The Receiver was and is required to receive from the Financier all moneys received from the lodge, giving his receipt therefor, and pay all orders drawn on him by the Master Workman attested by the Recorder. He was and is required to keep a separate and distinct account of the beneficiary fund, and, upon the receipt of notice through the lodge from the Grand Recorder, to forward a draft, payable to the order of the Grand Recorder, or otherwise, as the lodge may determine, for the...