State v. Knowles

• Decision Date: 13 December 1904
• Citation: 83 S.W. 1083,185 Mo. 141
• Parties: THE STATE v. KNOWLES, Appellant
• Court: Missouri Supreme Court

83 S.W. 1083

185 Mo. 141

THE STATE v. KNOWLES, Appellant

Supreme Court of Missouri, Second Division

December 13, 1904

Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.

Affirmed.

Cole Burnett, Williams and M. A. Fyke for appellant.

(1) (a) The indictment failed to properly allege the ownership of the property charged to have been embezzled. It did not allege the ownership in a corporation, or in a company, or in an individual or in dividuals, in any manner recognized as sufficient under the law. In passing on this question the rule of strict construction prevails. State v. Hall, 126 Mo. 585; State v. Patterson, 159 Mo. 98. It is necessary to allege the names of the copartners, if the company is a firm, or voluntary association; or state the corporation, if it is a corporation. State v. Jones, 168 Mo. 398. In such cases nothing is left in the charge to intendment. In an indictment nothing material shall be taken by intendment or implication. State v. Patterson, 159 Mo. 101; State v. Meyers, 99 Mo. 107; 2 Hawk. P C., ch. 25, sec. 61. It is only the property of corporations companies or individuals that is subject of embezzlement under the statute. State v. Patterson, 159 Mo. 98. The goods of a society or copartnership, not incorporated, or of two or more joint owners, may be described under the statute as the property of any member or part owner. Kelly's Criminal Law, sec. 649; R. S. 1899, sec. 2526. This indictment is not good under the statute. R. S. 1899 sec. 2526. The above statute is in itself in derogation of the common law and therefore to be strictly construed; yet by the statute itself, if Miners' Lodge No. 60 was a voluntary association or copartnership, it was and is necessary that the indictment should describe the property embezzled as the property of some member or part owner. On the trial the State made strenuous efforts, even by improper evidence, to show that the money charged to have been embezzled was not the property of the Grand Lodge, but was the property of the voluntary association designated in the evidence as Miners' Lodge No. 60. If the money charged to have been embezzled belonged to the "Grand Lodge," the corporation, then in order to be legally sufficient the indictment should have flatly charged that fact as to the ownership. If the money belonged to "Miners' Lodge No. 60," then the indictment is bad under the statute and the authorities above cited, since the indictment gives it (Miners' Lodge No. 60) no kind of legal status. A corporation is a distinct and independent "legal identity;" it is a legal absurdity to charge ownership in, or an offense against, "a part" of the corporation. As well might the same charge be made against "a part" of an individual. In the law as well as in physics, the whole is held to comprehend the part. "A civil suit can not be brought against a benevolent association in its association name. But the name of the members or some of them at least must be set forth." State v. Patterson, supra; Olery v. Brown, 51 How. Prac. 92; Paul v. Keystone Lodge, 3 Weekly Notes Cas. 408; Fritz v. Muck, 62 How. Prac. 69; State v. Jones, 168 Mo. 398; State v. Horned, 76 S.W. 953; State v. Gassard, 77 S.W. 473; Revis v. Lamme & Bro., 2 Mo. 208. The ownership of property embezzled must be alleged in the information. State v. Stearns, 42 P. 615; State v. Mecham, 33 So. 983; State v. Roubbs, 26 Am. St. 179; Whitney v. State, 73 N.W. 696; People v. Carter, 81 N.W. 924; 73 Md. 447. (b) It does not appear, either in the indictment or in the proof, as to the place where and the time when the alleged embezzlement or larceny took place. In criminal trials it must always be shown that the offense of which the prisoner is convicted was committed within the jurisdiction of the court. State v. Burns, 48 Mo. 438; Gordon v. State, 4 Mo. 375; State v. McGinniss, 74 Mo. 246; State v. Schuerman, 70 Mo.App. 518; State v. Sauerburg, 64 Mo.App. 129; State v. Tissing, 74 Mo. 72; State v. Knolle, 90 Mo.App. 238. (c) It does not appear that any demand was ever made by the Grand Lodge upon defendant. (d) It does not appear from the allegations or from the proof that Miners' Lodge No. 60 is a benevolent organization, or comes within the definition or provisions of the laws of this State as to such an organized body. R. S. 1899, secs. 1408, 1409, 1410 and 1918. A legal organization is something more than a mere association, and it is the conversion of the funds of the former and not of the latter that is made embezzlement by the statute. R. S. 1899, sec. 1918. (2) There was no legal evidence showing the laws, rules and regulations of the A. O. U. W., or of subordinate lodge, Miners' Lodge No. 60. The laws and rules in the pamphlet do not purport to be the original laws and rules as passed by the Grand Lodge, and they are not the original records of the Grand Lodge. They were not copies, properly certified, so as to make them admissible in evidence under the law expressly provided for such cases. R. S. 1899, sec. 3101; Chadwick v. Order of Triple Alliance, 56 Mo.App. 474. Where the records of a corporation are in existence, and can be obtained, parol evidence is inadmissible to prove the contents thereof. Coffin v. Collins, 17 Me. 440. The testimony of an officer of a corporation is inadmissible to prove the facts appearing upon the record, where the records can be produced. Haven v. New Hampshire Insane Asylum, 13 N.H. 532, 38 Am. Dec. 512; Lumbard v. Aldrich, 8 N.H. 31, 28 Am. Dec. 381; Thayer v. Ins. Co., 10 Pick. 326. To prove the acts of a corporation, its books are the best evidence, and ought to be admitted on proper authentication, whenever those facts are to be proved. Highland Turnpike Co. v. McKean, 10 Johns. 154. Parol evidence by an officer of a corporation to prove its by-laws is inadmissible, as not being the best evidence. Lumbard v. Aldrich, 8 N.H. 31, 28 Am. Dec. 381; Union Gold Min. Co. v. Rocky Mountain Natl. Bank, 2 Colo. 565; People v. Oakland County Bank, 1 Doug. (Mich.) 282. (3) Instruction 4 was erroneous, because it is a comment upon the evidence; it invaded the province of the jury; it segregates and comments upon the weight and sufficiency of a few facts to establish a fact decisive of a question of fact, without which no verdict could be found or stand against the defendant; it embodies an effort by the trial court to control the judgment of the jury; it singles out specific facts in such a way as to give them undue prominence and does not even require the jury to consider such facts in connection with the other facts and circumstances in evidence; it directs the jury that an inference was warranted from certain evidence, where and when if such inference was warranted, the law presumes the jurors more competent to draw it than the judge; the instruction is the argument of counsel for the prosecution, not an instruction to the jury in writing on a point of law arising in the cause; it is not a declaration of law tending to aid the jury toward a proper verdict after finding the facts; its object and effect was to control the jury in their finding on issues of fact. This character of instruction has been prohibited by the statutes, and persistently denounced by the Supreme Court. R. S. 1899, sec. 2639; State v. Hundley, 46 Mo. 414; State v. Sivils, 105 Mo. 530; State v. Grugin, 147 Mo. 55; State v. Smith, 53 Mo. 271; State v. Hibler, 149 Mo. 478; State v. Rutherford, 152 Mo. 124; Chouquette v. Barada, 28 Mo. 499; State v. Dunn, 18 Mo. 423; State v. Fairland, 121 Mo. 148; Railroad v. Stock Yards, 120 Mo. 559; Carroll v. Paul's Admr., 16 Mo. 226; Miller v. Marks, 20 Mo.App. 269; Jones v. Jones, 57 Mo. 138. (4) "Extrajudicial confessions of a prisoner are not sufficient to warrant a conviction, without proof aliunde of the corpus delicti." State v. Scott, 39 Mo. 424; Robinson v. State, 12 Mo. 592; Hill v. State, 11 Tex.App. 132; Brown v. State, 32 Miss. 433; Kennon v. State, 11 Tex.App. 356; Sam v. State, 32 Miss. 347; Williams v. People, 101 Ill. 382; Johnson v. State, 59 Ala. 37; State v. Knowles, 48 Iowa 598; People v. Lane, 49 Mich. 340; Mose v. State, 36 Ala. 211; United States v. Boese, 46 F. 917; Butler v. Commonwealth, 2 Duvall 435; Commonwealth v. Hanlon, 8 Phila. 401; People v. Jones, 31 Cal. 565; Gray v. Commonwealth, 101 Pa. St. 380; Jenkins v. State, 41 Miss. 582; Smith v. State, 21 Gratt. 809; People v. Ah How, 34 Cal. 218; United States v. Williams, 1 Clif. C. C. 5; State v. Keller, 43 Miss. 472; Andrews v. People, 117 Ill. 195; State v. Laliyer, 4 Minn. 368; People v. Mondon, 4 N. Y. Crim. Rep. 112; People v. Badgley, 16 Wend. 53. "The credit to be given to a confession is a question for the jury." Commonwealth v. Galligan, 113 Mass. 202.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The crime of embezzlement, as known to our laws and institutions has a statutory origin. No such offense existed at common law. It therefore follows that the sufficiency of the indictment for this crime is controlled largely by the wording of the statute. It has been held that indictments for such crimes are sufficient when the language of the statute is followed. 7 Ency. Pl. and Pr., p. 416; Commonwealth v. Bennett, 118 Mass. 443; State v. Crump, 23 Tex.App. 615; People v. Kerr, 110 Ill. 627; State v. Reinhart, 26 Ore. 466; United States v. Simmons, 96 U.S. 360; People v. Tomlison, 66 Cal. 344; State v. Nolan, 111 Mo. 473; State v. Adams, 108 Mo. 208. The indictment in question follows, as near as may be, the language of section 1918, upon which it is based. (2) It is also asserted by defendant that there is a failure to properly allege the ownership of the property charged to have been embezzled, in that there was no allegation as...