State v. Lomax

• Decision Date: 02 March 1929
• Docket Number: No. 29185.,29185.
• Parties: THE STATE v. EDWIN M. LOMAX, Appellant.
• Court: Missouri Supreme Court

14 S.W.2d 436

THE STATE v. EDWIN M. LOMAX, Appellant.

No. 29185.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Appeal from Caldwell Circuit Court. — Hon. Ira D. Beals, Judge.

AFFIRMED.

Thomas P. Burns for appellant.

(1) The acts of the defendant throughout the time covered by this case were committed with full knowledge of the officers of the Linn County Bank and defendant's knowledge and the knowledge of such officers was knowledge of the bank itself. Kansas City Cas. Co. v. Bank, 191 Mo. App. 287; Pile v. Bank, 187 Mo. App. 65; 3 Am. & Eng. Ency. Law, 832, 833; Greensboro Bank v. Clatt, 76 N.C. 482; Lowry v. Bank, Taney's Dec. (U.S.) 321; Commercial Bank v. Jones, 18 Tex. 811; Eastin v. Bank, 246 S.W. 993; Griffin v. Nat. Bank, 246 S.W. 183; Garr v. Harding, 45 Mo. App. 621; Bank v. Edwards, 243 Mo. 553; McCullam v. Third Nat. Bank, 237 S.W. 1055; Bank v. Welliber, 256 S.W. 133; Withers v. Bank, 67 Mo. App. 126; Bartlett v. McCallister, 289 S.W. 815; Lyons v. Corder, 253 Mo. 539; Secs. 11752, 11753, R.S. 1919; State v. Long, 278 Mo. 379; State v. Barker, 64 Mo. 282. All the deposits made in the Linn County Bank by the Brookfield School District were general deposits and the relation of debtor and creditor was created between the bank and the school district and the deposits became the property of the bank and continued so until paid out on warrants or indebtedness of the school district. Horigan Realty Co. v. Bank, 273 S.W. 772; State v. Gehner, 8 S.W. (2d) 1061; State v. Ross, 279 S.W. 415; Henry County v. Salmon, 201 Mo. 163; American Bank v. Peoples Bank, 255 S.W. 943; Schultz v. Bank of Harrisonville, 246 S.W. 616; William R. Compton Co. v. Trust Co., 279 S.W. 748; State v. Pate, 268 Mo. 431; University City v. Schall, 275 Mo. 667; Evans v. People's Bank, 6 S.W. (2d) 656; Samuel Hass Co. v. Service Assn., 297 S.W. 135. (2) The demurrer of the defendant should have been sustained because the evidence showed whatever embezzlement there was, was of the property of the Linn County Bank and a conviction under the present charge would not be a bar to a prosecution for embezzlement from the Linn County Bank. State v. Lackley, 230 Mo. 707; State v. Jones, 168 Mo. 398; State v. Hutchinson, 111 Mo. 257; State v. Horned, 178 Mo. 59; Kelley's Crim. Law & Prac. (3 Ed.) 577, 608. (3) Defendant's demurrer should have been sustained because one embezzlement of $45,000 was charged and proof was admitted showing a multitude of embezzlements of smaller amounts, and the information should have described several amounts of embezzlements and several dates, instead of combining a great number of separate crimes in one charge. State v. Noland, 111 Mo. 473. (4) The court committed error in permitting the State to amend the information in Caldwell County, the information having been filed in Linn County by the prosecuting attorney of Linn County. State v. Anderson, 191 Mo. 140; State v. Bartlett, 170 Mo. 658. There is an obiter dictum, in the case State v. Dixon, 253 S.W. 746, which seems to hold that an indictment or information can be amended in a county other than the county represented by the prosecuting attorney or the grand jury, but that dictum was not necessary for the decision of that case, and it was not a case where an amendment was made.

Stratton Shartel, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.

(1) The defendant's demurrer to the State's evidence was properly overruled. The evidence clearly shows that defendant had color of authority to exercise control over the funds standing to his credit as treasurer, and possessing such color of authority, it may be presumed, for the time being, that he was acting for the school district in his capacity as treasurer. (a) Defendant, at all times, had "charge, custody and control" over the funds in question, and the accompanying powers and responsibilities were not diminished or relaxed by reason of his depositing the funds in the bank. While the funds remained at all times the funds of the school district, he was not deprived of his special property in them as fiduciary and custodian until lawfully paid out in the usual course of business, or until the counting was demanded. Until then, defendant had color of authority to make demands upon the bank. Bell v. Commonwealth (Ky.), 259 S.W. 29. (b) The evidence, properly considered, shows only one act of embezzlement. A cumulation of peculations may be considered in the aggregate as one crime. State v. Gebhardt, 219 Mo. 708; State v. Shour, 196 Mo. 202; State v. Wise, 186 Mo. 42. (c) The act of assuming charge and control of funds in a fiduciary capacity is one transaction, and the deposit of the funds in the bank is another and distinct transaction. Whatever relation may have been created by the second, does not discharge the obligations arising out of the first. (d) As custodian of said funds, the defendant had a special property in them investing in him the powers of "ownership" as to all the world, except the school district to which he was accountable. Consequently, he could not have been guilty of embezzlement from the bank as to such funds in which he had a special property. State v. Noland, 111 Mo. 473; State v. Martin, 230 Mo. 680. (e) The corpus delicti was clearly established. In this, confessions and circumstances corroborative thereof may be considered together. State v. Morro, 281 S.W. 720. (2) An information may be amended after change of venue. Sec. 3853, R.S. 1919; State v. Tippett, 296 S.W. 132; State v. Rennison, 267 S.W. 850; State v. Dixon, 253 S.W. 746 (overruling State v. Bartlett. 170 Mo. 658). (3) If there be a variance between the proof and allegation of information as to ownership of funds, this is immaterial, as it would not affect the substantial rights of the defendant and especially in view of the fact that there was no finding of the trial court as to the immateriality of this variance. Sec. 3907, R.S. 1919; State v. Broyles, 295 S.W. 557; State v. Smith, 252 S.W. 665; State v. Lackey, 230 Mo. 707.

DAVIS, C.

On October 3, 1927, the Prosecuting Attorney of Linn County filed an information in the circuit court charging defendant with the embezzlement of $45,334.61, belonging to the Brookfield School District. On change of venue to Caldwell County, the verdict of the jury was guilty, and the punishment fixed was five years' imprisonment in the state penitentiary. Defendant appealed.

The evidence submitted warrants the finding that, during the year 1922 and thereafter, until the bank closed its doors on March 6, 1925, and until a new treasurer was elected about September 1, 1925, defendant was respectively president of the Linn County Bank and treasurer of the Brookfield School District. As president of the bank, defendant was actively engaged in operating and administering its business. The money of the school district was deposited in said bank, subject to the control of defendant upon a checking account, and the account was carried in the name of "E.M. Lomax, School Treas." On March 31, 1927, defendant executed a sworn statement in writing, a portion of which was, on motion of defendant, deleted. As admitted in evidence, omitting signatures and verification, the statement reads:

                         "Brookfield, Mo., March 31, 1927
                

"Statement as to matters between E.M. Lomax, former Treasurer of Brookfield School District, and the said Brookfield School District.

                Balance due the general fund from E.M
                 Lomax to date.......................................  $28,277 96
                Sinking fund same date...............................   30,365 66
                Interest fund same date..............................    2,522 43
                Library fund same date...............................      627 06
                                                                       __________
                                                                       $61,793 11
                Less overdraft on building fund.............. $ 48 13
                Less overdraft free text fund................  636 24
                                                              _______
                                                              $684 37      684 37
                                                                       __________
                    Balance due .....................................  $61,108 74
                Less amount on hand in Linn County Bank
                 at time of failure and shown in account
                 of E.M. Lomax, School Treasurer.....................   15,774 13
                                                                       __________
                    Balance shortage.................................  $45,334 61
                

"I further state that the said funds of the said Brookfield School District above set forth were applied by me to personal obligations of my own as follows: ...

"I also, about 1923, applied from these funds $1650.80 in the purchase of 1/4 interest in the Hargadine farm near Brookfield which has since been sold under a deed of trust. I cannot give date more accurately.

"At various times from the year 1920 to Jan. 1, 1925, I invested from these funds at various times in farm operations the sum of about $2000 in all. At various times between Jan. 1, 1920, and Jan. 1, 1925, for farm operations and money loaned a total of $1500. This amount is still due me from said A.W. Baker.

"I advanced to the Brookfield Investment Company from the year 1918 to Jan. 1, 1925, the sum of approximately $15,000. This amount is shown by notes, three in number, payable to John T. Lomax, signed by the Brookfield Investment Company, now in the hands of Chas. K. Hart as trustee for Brookfield School Board. I cannot give these dates more accurately.

"I also invested from these funds in the stock of the Linn County Bank the sum of about $5000 purchase of stock from several persons including Simon Hartman, R.W. Davis and others. This stock still stands in my name on books of Linn County Bank. The balance of this money was applied to payment of interest, taxes, living, etc. In the early part of 1925 I took from this fund the sum of $1200 approximately, which...