State v. Lentz

• Decision Date: 22 November 1904
• Citation: 83 S.W. 970,184 Mo. 223
• Parties: STATE v. LENTZ.
• Court: Missouri Supreme Court

83 S.W. 970

184 Mo. 223

STATE v. LENTZ.

Supreme Court of Missouri, Division No. 2.

November 22, 1904.

EMBEZZLEMENT BY AGENT—SUBSEQUENT RESTORATION—INSTRUCTIONS—CRIMINAL INTENT —SECONDARY EVIDENCE.

1. In a prosecution for embezzlement under Rev. St. 1899, § 1912, which denounces the embezzlement or conversion of money or property by an agent or employé without the consent of the master or employer, an instruction which undertakes to cover all the elements of the offense, but omits to require the jury to find that the conversion or embezzlement was without the consent of the prosecutor, is fatally defective, though another instruction requires such finding.

2. An agent or employé who intentionally embezzles the money of his employer, and converts the same to his own use, is guilty of the offense denounced by Rev. St. 1899, § 1912, though he subsequently formed the intention to restore the money, and did restore it.

3. A criminal intent is inferred from the act of an agent or employé in intentionally and unlawfully embezzling and converting to his own use the money belonging to his employer, as denounced by Rev. St. 1899, § 1912.

4. The mere fact that the production of original letters could not be compelled does not avoid the necessity of making an effort to secure their production before press copies are admissible.

Appeal from Circuit Court, Butler County; Robt. A. Anthony, Special Judge.

E. R. Lentz was convicted of embezzlement, and appeals. Reversed.

On the 16th day of February, 1903, the prosecuting attorney of Butler county, Mo., filed in the office of the clerk of the circuit court of that county an information against one E. R. Lentz, charging him with the embezzlement of $89.38. The trial from which this appeal was taken resulted in the conviction of the defendant, and his sentence to imprisonment in the penitentiary for a period of two years. The evidence discloses that Elizabeth Brummett, who at the time of the trial lived near Perry, Okl., was entitled to a small share in an estate which was in course of administration in Butler county, Mo., and that she in the first instance placed the matter in the hands of S. H. Harris, an attorney located at Perry, and that Harris in turn placed the matter in the hands of the defendant for collection. She appointed the defendant as her attorney to collect and receipt for the money. On the 24th day of March, 1902, the defendant collected from the guardian of Elizabeth Brummett the sum of $89.38, a portion of which he soon thereafter converted to his own use; and, after having done this, the record discloses that he wrote a number of letters to Mr. Harris, intimating that the money had not yet been collected. This character of correspondence emanating from the defendant began on the 26th day of April, 1902, after he had collected the money, and continued at frequent intervals until November 12, 1902, at which time the defendant sent a draft to Mr. Harris for the sum of $66.52; and afterwards, the mistake being called to his attention, he sent another check for the balance he claimed was due, his check being $6.23. This amount not being satisfactory, the correspondence between the two attorneys was continued. The letters of the defendant, written after the money had been collected, contained excuses as to why he had been unable to collect the same. In one of the letters he states that, under the particular provisions of our law, the settlements of estates in the probate courts "lie over one term after filing, before it can be approved, unless the ward is personally present." This letter was written almost four months after the money had been collected. In another letter he speaks of the sickness of the guardian as delaying the settlement. The guardian testified that he did not remember of being sick at all during the year of 1902. This was substantially the testimony on behalf of the state. The evidence on behalf of the defendant consisted only of the testimony of the defendant. He testified that the reason the money was not sent before was "as much a matter of neglect as anything else." He admitted that he had used a part of the money, but that he intended to get the money to replace the same within a few days, and that he was disappointed in getting it, "and the matter was allowed to drag along." He testified that he had no intention of converting the money to his own use. He further stated that he only used $23 or $24 of the money collected; that the remainder of it was not touched. As to the correspondence by Harris, the state, over the objections of the defendant, introduced press copies of letters written by Harris to the defendant. It is unnecessary to reproduce here the contents of those letters. The letters, as well as the objections to their introduction, will be given due consideration in the course of the opinion. After the close of the testimony the court declared the law as follows:

"(1) The court instructs the jury that if they believe and find from the evidence in this cause that at any time within three years prior to the filing of the information in this cause that the defendant was the agent and attorney of a certain private person, to wit, Elizabeth Brummett, and that the defendant during the time of his employment as such agent and attorney of said Elizabeth Brummett was not a person under the age of sixteen years, and that, during such employment as such agent, did, by virtue of his employment, take or receive into his possession, as the money of said Elizabeth Brummett, the sum of eighty-nine dollars, or any portion thereof of the value of thirty dollars or more, and that after receiving said money the defendant did, at the county of Butler and state of Missouri, and within three years prior to the filing of the information in this cause, feloniously, unlawfully, and intentionally embezzle and fraudulently convert said money, or any portion of the same, to the amount of thirty dollars or more, to his (the defendant's) own use, without the assent of his employer, Elizabeth Brummett, and that he (the defendant) did so convert the same with the felonious intent to deprive the said Elizabeth Brummett of the said money, and that said money so embezzled and converted by the defendant then and there belonged to, and was the property of, said Elizabeth Brummett, then you should find the defendant guilty of embezzlement, as charged, and assess his punishment at imprisonment in the penitentiary for a period of not less than two nor more than five years.

"(2) If the jury believe and find from the evidence that the defendant did, within three years prior to the filing of the information in this cause, receive into his possession the money mentioned in the information, or any portion thereof, to the value of thirty dollars or more, and that he received the same into his possession by virtue of his employment as the agent and attorney of Elizabeth Brummett, and that he did within three years prior to the filing of the information in this cause, at the county of Butler and state of Missouri, feloniously, unlawfully, and intentionally embezzle and fraudulently convert the same to his own use, you will find the defendant guilty of embezzlement, as charged in the information, notwithstanding the jury should believe and find from the evidence that the defendant intended at some future time to restore said money, or that he did thereafter pay or restore same.

"(3) The court instructs the jury that the law presumes that every man intends the natural and probable consequences of his own acts, and if you find from the evidence that the defendant unlawfully converted the money alleged in the information to have been embezzled, to his own use, you will be authorized to infer therefrom the criminal intent, and that he did at the time intend to embezzle and convert the same to his own use, and to deprive Elizabeth Brummett of it. The court further instructs the jury that `feloniously' means a wrongful act willfully done.

"(4) The court instructs the jury that the defendant is a competent witness in his own behalf, and you must consider his evidence in arriving at your verdict; but, in determining the weight that you shall give to his testimony, you may take into consideration that fact that he is the defendant, and the interest that he has in the result of this case.

"(5) The court instructs the jury that the law presumes the defendant innocent of the crime charged against him in this information, and the burden of proving him guilty thereof beyond a reasonable doubt rests upon the state. Now, if, after a full and fair review of all the evidence in the cause, you entertain a reasonable doubt of the defendant's guilt, you should give him the benefit of such doubt and acquit him; but such doubt, to authorize you to acquit him on that ground alone, should be a substantial doubt, founded on the evidence, and not a mere possibility of his innocence."

In addition to these declarations, the court modified an instruction offered by defendant, and gave it as follows: "The court instructs the jury that the defendant is charged with a felony in this case; that is to say, that he embezzled the sum of thirty dollars or more of the money of Lizzie Brummett. Now, before you can convict the defendant of a felony in this case, you must believe, beyond a reasonable doubt, that Lentz embezzled $30 or more of said Lizzie Brummett's money." Then followed an instruction given by the court upon its own motion which 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, do 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...