State v. Mahan

• Decision Date: 10 March 1897
• Citation: 39 S.W. 465,138 Mo. 112
• Parties: The State v. Mahan, Appellant
• Court: Missouri Supreme Court

39 S.W. 465

138 Mo. 112

The State v. Mahan, Appellant

Supreme Court of Missouri, Second Division

March 10, 1897

Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed and remanded.

Orchard & Hines and A. H. Livingston for appellant.

(1) There is a very important and just distinction between an officer who collects and handles public money and one who collects and handles private money. A constable in collecting executions is under law collecting and handling private money. He may have many executions in favor of one plaintiff and against as many defendants. He is charged with embezzling money belonging to this plaintiff, but he is not informed by the indictment on what execution this money was collected nor from whom collected. (2) There is no excuse whatever for such failure to charge the facts constituting the offense. In order to constitute the offense appellant must have had authority to collect the money charged; or it could not belong to T. I. Pitts. Hence it was important and necessary to charge that the money was collected under an execution and if necessary to charge that it was collected under execution, was it not also important to describe the particular execution -- against whom and from whom collected? In order to convict, it was necessary to prove these facts and if necessary to be proven, was it not also necessary to be charged? Suppose that defendant had collected money belonging to T. I. Pitts on divers executions, could the conviction in this case be pleaded in bar to another indictment? Could it be pleaded in bar to another indictment for the same offense? Is not this, then, the infallible test of the sufficiency of an indictment? (3) Even the vague allegations of the indictment are not sustained by the proof. It is alleged that appellant collected money "under a certain execution duly issued by J. A. Sigler, justice of the peace." The evidence shows that the execution was issued on the twenty-ninth day of August, 1893, and delivered to J R. Renneker, constable. This is shown by the record of the justice. Nothing is ever seen or heard of the execution afterward. The record shows that appellant was not constable until the fifth day of February, 1894. The execution was issued more than five months before appellant became constable, and over six months before the money is charged to have been collected. There is no evidence that the execution was ever renewed or reissued. The execution expired at the end of ninety days, and so far as the evidence shows the execution was collected, or had ceased to exist at the expiration of ninety days from August 29, 1893. Renneker was constable until February 5, 1894.

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

(1) A reasonable inference of guilt being clearly shown by the testimony, the verdict of the jury will not be molested on the ground of insufficient evidence. (2) The indictment is sufficient in form. All necessary averments are set out clearly and substantially informing defendant of the offense charged. State v. Flint, 62 Mo. 393; State v Clarkson, 59 Mo. 149; State v. Manley, 107 Mo. 364. It was unnecessary to set out the names of the parties plaintiff and defendant in the execution. The charge is made that he "converted to his own use and embezzled money that came to him by virtue of his office, to wit, $ 100, the money and property of one T. I. Pitts," and this sufficiently acquaints defendant of the offense charged. In the case of State v. Flint, 62 Mo. 393, Wagoner, Judge, said: "We do not think there is any valid objection to the indictment on account of its failure to state from whom defendant received the money, or to point out what particular...