State v. Laughlin

• Decision Date: 01 March 1904
• Citation: 180 Mo. 342,79 S.W. 401
• Parties: STATE v. LAUGHLIN.
• Court: Missouri Supreme Court

79 S.W. 401

180 Mo. 342

STATE v. LAUGHLIN.

Supreme Court of Missouri, Division No. 2.

March 1, 1904.

EMBEZZLEMENT — PLEA — DEMURRER — SUFFICIENCY OF PLEA — EVIDENCE — INSTRUCTIONS.

1. Where an information charged defendant with embezzling $229 belonging to Stella Hahn, a minor, intrusted to him as public administrator, and defendant interposed a plea of former acquittal, alleging that defendant had previously been prosecuted for embezzling $180.94 of the estate of John Brodbeck, an incompetent, it was proper not to submit to the jury a question as to the identity of the wards.

2. Where a plea of former acquittal shows on its face that the offenses are not the same, a demurrer is the proper step on the part of the state.

3. Embezzlement by a public administrator having charge of funds belonging to two different persons amounts to two distinct offenses, though the conversions occur at the same time.

4. A showing that money belonging to a minor was intrusted to the public administrator, and that he did not have the funds, and had not paid them to the ward or her creditors, or to his successor in office, was sufficient to sustain a conviction of embezzlement.

5. There is no error in refusing instructions on points fully covered by those given.

6. On a prosecution for embezzlement of funds intrusted to defendant as public administrator, defendant requested the court to charge that the fact that defendant failed to pay over the funds to his successor did not show guilt, but that the state must prove, beyond a reasonable doubt, that defendant converted the funds with felonious and fraudulent intent. The instruction was given with the modification that it was not necessary that such proof should be made by direct evidence, but might be shown by facts and circumstances, and that the jury should consider all the circumstances in determining whether or not the defendant feloniously and fraudulently converted the funds. Held, that the modification was proper.

Appeal from Circuit Court, Holt County; Gallatin Craig, Judge.

Giles A. Laughlin was convicted of embezzlement, and he appeals. Affirmed.

See 68 S. W. 340.

Petree Bros. and Chas. F. Booher, for appellant. The Attorney General and C. D. Corum, for the State.

FOX, J.

The charge in this case is embezzlement. The defendant was administrator of Holt county, and it appears that three successive times he was elected to that office. Before the termination of his third term, he resigned, and D. M. Walker was appointed his successor. During the incumbency of the office of public administrator, a partition suit was determined in Holt county, and it appeared that Stella Hahn, a little girl nine years old, was the heir to an interest in a tract of land sold, and that her portion of the real estate brought $229.36. The child being a minor, the probate court of Holt county ordered and directed the defendant, as public administrator of the county, to take charge of the estate of the child, which he accordingly did. He received from the sheriff a check for the sum of $229.36, and deposited the same in the bank to his credit as administrator. He filed his inventory with the clerk of the probate court, showing that the estate of Stella Hahn consisted of $229.36. His final settlement as public administrator shows that there was a balance due the said Stella Hahn of $229.36, and that he had paid out no part of said sum to her, or to any creditor of her estate. The defendant admitted to his successor in office that he had never paid the money to Stella Hahn or to her creditors, and that he was unable to pay it over to his successor, because of the fact, as he stated, that he did not have the money. It seems that the original information in this case was filed on the 14th day of January, 1901. The transcript shows that on the 6th day of April, 1903, there was filed in the Holt circuit court an amended information. It is also shown by the record that Mr. Petree, of counsel for the defendant, who was at the time of the trial the prosecuting attorney of the county, had been consulted by the defendant prior to Mr. Petree's election to the office, on account of which the court appointed Ivan Blair, Esq., formerly prosecuting attorney of the county, to prosecute this case. The record further indicates that during the month of January, 1901, an information was filed against this defendant, charging him with the embezzlement, as public guardian, of the sum of $180.94 belonging to John Brodbeck, and that the defendant was acquitted of this charge. On account of the defendant's acquittal of the charge of having embezzled the money of John Brodbeck, the defendant filed a plea in the nature of autrefois acquit.

The amended information upon which defendant was tried is as follows: "Ivan Blair, the duly appointed, qualified, and acting prosecuting attorney in and for the county of Holt and state of Missouri, appointed by the circuit court in and for the county and state aforesaid to prosecute this cause for and on behalf of the state of Missouri, the plaintiff herein, upon his oath of office informs the court that defendant, Giles A. Laughlin, on or about the ___ day of July, 1899, at the said county of Holt, was the duly elected, acting, and qualified public administrator, and as such public administrator was an ex officio public guardian in and for the county of Holt and state of Missouri, and, as such public administrator and ex officio public guardian, was ordered by the probate court of said Holt county to take charge of the estate of one Stella Hahn, a minor under the age of fourteen years, and to act as curator of said estate; and the said Giles A. Laughlin then and there took charge of the said estate, as curator thereof, and, by virtue of his said official position as public administrator and ex officio public guardian in charge of the said estate, as curator thereof, under the aforesaid order of the probate court aforesaid, was then and there intrusted with, and had charge and custody of, certain money belonging to, and being the property of, the said Stella Hahn, and being so intrusted with, and having the care, custody, and control of, said money by virtue of his said official position as public administrator and ex officio public guardian in charge of said estate as curator thereof, under the order of the said probate court, certain of said money, to wit, the sum of $229.36, of the value of $229.36, the denomination and particular description of which said money is unknown and cannot be given, belonging to the said Stella Hahn, and by the said Giles A. Laughlin received and taken into his possession and custody by virtue of his said official position as public administrator and ex officio public guardian in charge of the estate of the said Stella Hahn, as curator thereof, under said order of the said probate court, the said Giles A. Laughlin did, on or about the said ___ day of July, 1899, in the county of Holt and state of Missouri, unlawfully, fraudulently, and feloniously embezzle, make away with, secrete, and convert to his own use, and so the said Giles A. Laughlin, the said $229.36, of the value aforesaid, belonging to the said Stella Hahn, in the manner and form aforesaid, feloniously did embezzle, steal, take, and carry away, against the peace and dignity of the state."

The same day that the amended information was filed, the defendant filed the following plea of autrefois acquit: "And now comes the defendant, in his own proper person and by his attorneys, and, having heard the information herein read, says that the state of Missouri ought not further to prosecute the said information against him, the said Giles A. Laughlin, because he says that heretofore, to wit, at a certain term of the circuit court holden at Oregon, in and for the county of Holt and state of Missouri, being the January term, 1901, of said court, an information was presented and filed by the prosecuting attorney in and for said county in the said circuit court, wherein it was charged that `Giles A. Laughlin on or about the ___ day of July, 1899, at the county of Holt, was duly elected and qualified public guardian in and for said county of Holt, and, as said public guardian, was ordered by the probate court of said Holt county to take charge of the estate of John Brodbeck, a person of unsound mind, and to act as guardian of the said John Brodbeck, and, by virtue of his official position as guardian of the said John Brodbeck, was then and there intrusted with, and had charge and custody of, certain money belonging to, and being the property of, the said John Brodbeck; and, being so intrusted with, and having the care, custody, and control of, the said money aforesaid by virtue of his said official position as guardian of the said John Brodbeck, certain of said money, to wit, the sum of $180.94, of the value of $180.94, the denomination and particular description of which said money is unknown and cannot be given, of the money belonging to the said John Brodbeck, by the said Giles A. Laughlin received and taken into his possession and custody, by virtue of his said official position as guardian of the said John Brodbeck, unlawfully, fraudulently, and feloniously did embezzle, make away with, secrete, and convert to his own use. And so the said Giles A. Laughlin the said $180.94, of the value aforesaid, in manner and form aforesaid, feloniously did embezzle, steal, take, and carry away, against the peace and dignity of the state.' And the said Ivan Blair, prosecuting attorney as aforesaid, did further charge, in a second count of said information, filed as aforesaid, that `Giles A. Laughlin, on or about the ___ day of July, 1899, at the said county of Holt, was guardian of one John Brodbeck, a person of unsound mind; and, by virtue of his said official position as guardian of the said John Brodbeck, was then and there intrusted with, and had charge and custody of, certain money belonging to,...