State v. Manley

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Gantt
• Citation: 107 Mo. 364,17 S.W. 800
• Parties: STATE v. MANLEY.
• Decision Date: 16 November 1891

17 S.W. 800 107 Mo. 364 STATE
v.
MANLEY. Supreme Court of Missouri, Division No. 2. November 16, 1891.

EMBEZZLEMENT BY CONSTABLE — INDICTMENT — INSTRUCTIONS.

1. Rev. St. 1889, § 3555, inflicts a penalty on any officer, etc., "who shall convert to his own use, * * * or shall make way with or secrete, any portion of the public moneys, or any moneys that may have come to him by virtue of his official position;" and an indictment charging that defendant "did unlawfully and feloniously make way with, secrete, and convert to his own use," etc., charges but a single offense, as the words used are not inconsistent with one another.

2. An indictment for embezzlement, alleging that defendant, "then and there being an officer duly elected, * * * to-wit, a constable for and within the sixth district of the city of S., did," etc., clearly and distinctly alleges defendant to be an officer, though the word "being" is used instead of "was," and the word "qualified" is omitted.

3. An instruction that, if the jury find from the evidence that the defendant unlawfully, fraudulently, and feloniously converted to his own use money he had collected by virtue of his official position, they should find him guilty, is not erroneous, as ignoring the criminal intent.

Appeal from St. Louis criminal court; JAMES C. NORMILE, Judge.

James Manley was convicted of embezzlement, and appeals. Affirmed.

Thos. B. Harvey, for appellant. John M. Wood, Atty. Gen., and A. C. Clover, Circuit Atty., for the State.

GANTT, P. J.

The defendant was tried and convicted in the criminal court of St. Louis on the following indictment: "The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court duly impaneled, sworn, and charged, upon their oath present that James Manley, late of the city of St. Louis aforesaid and state aforesaid, on or about the second day of November, in the year of our Lord one thousand eight hundred and eighty-eight, at the city of St. Louis aforesaid, then and there being an officer duly elected by virtue of the law of the state of Missouri, to-wit, a constable for and within the sixth district of the city of St. Louis, did unlawfully and feloniously make way with, secrete, and convert to his own use moneys that came to him by virtue of his office as constable aforesaid, to-wit, seventy-five dollars lawful money of the United States, and all the property of Martin Monti, which said money came to and was collected by said James Manley by virtue of his official position aforesaid, under a certain landlord summons duly issued by one James McCaffery, a justice of the peace for and within the city of St. Louis, in the state of Missouri, duly qualified and authorized by law to issue said landlord summons so placed in the hands of said James Manley, constable as aforesaid; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. WILLIAM ZACHRITZ, Assistant Circuit Attorney." Defendant moved the court to quash the aforesaid indictment, alleging a number of grounds, some of which will be referred to in the course of this opinion; and, after exceptions had been preserved to the action of the court in overruling said motion, a trial was had, resulting in a verdict against appellant. Motions for new trial and in arrest were duly filed and overruled, a bill of exceptions tendered and signed, and appeal taken. The defendant assigns as error that the indictment was insufficient,

17 S.W. 801

for that it charged several distinct offenses in the same count, and because it failed to charge that the defendant had qualified as constable for the sixth district of St. Louis. He also complains that the court erred in instructing the jury that they could convict the defendant of either of three distinct crimes...