State v. Manley

• Decision Date: 16 November 1891
• Citation: 17 S.W. 800,107 Mo. 364
• Parties: The State v. Manley, Appellant
• Court: Missouri Supreme Court

17 S.W. 800

107 Mo. 364

The State v. Manley, Appellant

Supreme Court of Missouri, Second Division

November 16, 1891

Appeal from St. Louis Criminal Court. -- Hon. J. C. Normile, Judge.

Affirmed.

Thos B. Harvey for appellant.

(1) The indictment should have been quashed, because it charged several distinct offenses in the same count. State v Clarkson, 59 Mo. 149; State v. Flint, 62 Mo 393. (2) The indictment should have been quashed, because it failed to allege that the accused had qualified as an officer or had entered upon the discharge of his duties as such. State v. Clarkson, supra; State v. Flint, supra; State v. Hays, 78 Mo. 600; State v. Cleveland, 80 Mo. 108; State v. Findley, 101 Mo. 217. (3) The court erred in instructing the jury that they could convict the defendant of any one of the three crimes charged; and in failing to instruct that a criminal intent must accompany the alleged wrongful act.

John M. Wood, Attorney General, for the State.

(1) The indictment is sufficient in its allegations to support the verdict and the judgment. It charges the offense in the language of the statute, and fully advises defendant of the offense charged and the particulars of its commission. (2) The indictment is not open to the charge of duplicity. When the statute enumerates the offenses, or the intent necessary to constitute the offense, disjunctively, the indictment must charge them conjunctively, when the acts are not repugnant. State v. Flint, 62 Mo. 393; State v. Fitzsimmons, 30 Mo. 326; State v. Fancher, 71 Mo. 460; State v. Bregard, 76 Mo. 322; State v. Pitman, 76 Mo. 56; State v. Nation, 75 Mo. 53. The charge in the indictment must not be inconsistent with itself; but no absolute rules can be laid down to determine what repugnancy will be fatal. State v. Flint, 62 Mo. 393. The indictment is not obnoxious to the objections urged in State v. Clarkson 59 Mo. 149, and State v. Flint, 62 Mo. 393. (3) The instructions given by the court fully covered the law of the case, and were correct in every particular.

OPINION

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 1888, 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 away with, secrete and convert to his own use moneys that came to him by virtue of his office as constable aforesaid, to-wit, $ 75 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 in 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, 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 charged in the indictment, and in failing to instruct that a criminal intent must have accompanied the alleged wrongful act.

I. The cases of State v. Clarkson, 59 Mo. 149, and State v. Flint, 62 Mo. 393, are relied on in support of the proposition that three distinct offenses are blended in one count. The indictment here is drawn under section 1326, Revised Statutes, 1879, as amended by the act of March 15, 1887. Session Acts, 1887, pp. 161-2; R. S. 1889, sec. 3555. That the scope of the section is greatly enlarged by the amendment, both as to the persons included within its provisions and the moneys and property converted, may be seen at a glance. By this act it is made a felony for any officer elected or appointed by virtue of the constitution of this state, to "convert to his own use in any manner whatever any moneys that may have come to him by virtue of his office or official position, or to make away with or secrete any moneys that may have come to him by virtue of his office or position."

It was said in State v. Flint, 62 Mo. 393, that this court in Clarkson's case had determined that the first clause of the section described the ordinary elements of the offense of embezzlement, which was followed by certain alternative provisions which being committed would also constitute that crime. In that case the charge was that the defendant "did convert to his own use by way of investment in property and merchandise, and make away with and secrete certain public money." This court held in that case that the two charges were repugnant, that it was a physical impossibility to invest the same money in property and merchandise, and at the same time make away and secrete it in the sense of the statute.

Here the charge is "did make away with, secrete and convert to his own use." Is there any repugnancy here? The statute covers conversion "in any manner whatever." We are not aware of any technical significance the words "make away with," "secrete" and "convert" have, that would render them repugnant or inconsistent. Either of them would characterize an embezzlement, or all of them can properly unite in designating a particular embezzlement. One can "make away" with another's property by secreting it and at the same time make a secret investment of it for his own benefit, thus fully meeting the legal view of a conversion to his own use.

This court in State v. Flint did not deem the words "make away with" and "secrete" repugnant. If they are not repugnant to each other they certainly are not to the expression "convert." Indeed, we ...