State v. Martin

• Decision Date: 29 November 1910
• Citation: State v. Martin, 230 Mo. 680, 132 S.W. 595 (Mo. 1910)
• Parties: STATE v. MARTIN.
• Court: Missouri Supreme Court

132 S.W. 595

230 Mo. 680

STATE v.MARTIN.

Supreme Court of Missouri, Division No. 2.

November 29, 1910.

1. INDICTMENT AND INFORMATION (§ 137)— INDORSEMENT—NAMES OF WITNESSES.

The information should be quashed if no witnesses' names are indorsed thereon as required by statute, unless the prosecuting attorney offers to supply such omission, in which event accused should be allowed a reasonable time thereafter to prepare his defense.

2. CRIMINAL LAW (§ 1144) — APPEAL — PRESUMPTIONS.

In the absence of any contrary evidence in the record, the Supreme Court will assume that a statement in the motion to quash the information, that the name of no witness was indorsed thereon, was true.

3. CRIMINAL LAW (§ 1137)—APPEAL—ESTOPPEL TO ALLEGE ERROR.

Where accused announced ready for trial after the prosecuting attorney had indorsed the names of the witnesses on the information, and a motion to quash for their omission had been overruled, accused could not complain on appeal that he was denied a reasonable time to prepare his defense after the witnesses' names were indorsed.

4. EMBEZZLEMENT (§ 5)—ELEMENTS—INTENT —ASSENT OF OWNER.

Rev. St. 1909, § 4556, making any officer of any trade organization, etc., who shall convert to his own use any moneys coming to him by virtue of his official position punishable as prescribed for stealing property, does not make either accused's intent or the absence of the owner's assent an element of the crime.

5. CRIMINAL LAW (§ 881)—VERDICT—GENERAL VERDICT.

Where the information only charges one offense, a general verdict merely finding accused guilty and assessing his punishment is sufficient.

6. CRIMINAL LAW (§ 875)—VERDICT—INCORRECT SPELLING.

Bad spelling will not vitiate a verdict when its meaning is clear, so that the spelling of the word "foreman" as "forenon" did not affect the validity of the verdict.

7. INDICTMENT AND INFORMATION (§ 189)— CHARGING TWO OFFENSES—CONVICTION FOR LESSER OFFENSE.

An information charging the embezzlement of a sum which amounted to a felony included the lesser grade of misdemeanor embezzlement so as to authorize a conviction therefor; the statutory penalty being that prescribed for stealing property of the value of the article embezzled.

8. EMBEZZLEMENT. (§ 48)—PROSECUTION—INSTRUCTION.

In a prosecution of an officer of a trade union for an embezzlement of money held in his official capacity under Rev. St. 1909, § 4556, which prescribes the penalty as that prescribed for stealing property of the kind or value of the article embezzled, an instruction authorizing a conviction if accused within three years before the filing of the information received in his possession any part of the money of the value of less than $30, and did within such three years unlawfully embezzle it, was erroneous for submitting the felony limitation of three years when the instruction was based on the theory of a misdemeanor by embezzling less than $30, so as to make the misdemeanor limitation of one year applicable.

9. CRIMINAL LAW (§ 1172)—APPEAL—HARMLESS ERROR—INSTRUCTIONS.

The error in the instruction was not prejudicial to accused, where he was found guilty of a felony so as to necessarily find that the money embezzled was of the value of $30 or over; the analagous rule applying that, where an offense of different degrees is charged, an erroneous charge upon a degree lower than that of which accused was convicted is not reversible error.

10. CRIMINAL LAW (§ 1186)—APPEAL—HARMLESS ERROR—VARIANCE.

Any variance in a prosecution for embezzling money intrusted to accused's custody as the officer of a trade organization, in that the information alleged that he was "treasurer" of the local union, while the proof showed that the by-laws designated his office as "secretary-treasurer," was not prejudicial to accused and was not material under Rev. St. 1909, § 5114,

providing that such error shall not be deemed ground for acquittal.

11. CRIMINAL LAW (§ 568)—EVIDENCE—INTENT.

An instruction was proper, in a prosecution of a labor union official for embezzlement of money intrusted to his custody, that it was not necessary that criminal intent be proved by positive and direct evidence.

12. CRIMINAL LAW (§ 785)—INSTRUCTIONS—WEIGHING EVIDENCE.

An instruction that, in determining the credibility and value of the testimony of any witness, the jury might consider his character, was proper when applicable to the facts.

13. CRIMINAL LAW (§ 786)—INSTRUCTIONS—WEIGHING EVIDENCE.

An instruction that accused's testimony should be weighed by the same rules that govern the testimony of other witnesses is proper.

14. EMBEZZLEMENT (§ 35)—PROOF—VARIANCE —PROPERTY EMBEZZLED.

In the prosecution of the treasurer of a miner's union for embezzling funds of the union, the evidence showed that statements of dues owing the union by the members were presented to the coal company each month by the secretary of the union and were deducted from the members' wages and paid to accused as treasurer, by checks on a local bank which were cashed by him, and the proceeds placed to his credit in the bank. Held, that there was no variance on the ground that the information charged the embezzlement of money, while the proof showed the receipt of checks by accused from the coal company.

15. CRIMINAL LAW (§ 407)—ADMISSIBILITY OF EVIDENCE—ADMISSION.

In the prosecution of a trade union official for embezzling money in his custody, a report made by a committee appointed to audit accused's account, to which report accused assented when it was made, was admissible in evidence against him.

16. CRIMINAL LAW (§ 1169)—APPEAL—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Where, in a prosecution of a labor union treasurer for embezzling money in his possession, accused was allowed full credit at trial for the amount supposed to have been on hand when his accounts were audited as shown by the report of an auditing committee, accused could not have been prejudiced by the admission of such report in evidence.

17. CRIMINAL LAW (§ 1137)—TRIAL—DEMURRER TO EVIDENCE—WAIVER.

Accused by himself offering evidence after the refusal of his requested instruction in the nature of a demurrer to the evidence cannot afterwards claim error in refusing the instruction.

18. CRIMINAL LAW (§ 1064)—APPEAL—REVIEW.

An assignment of error in the motion for new trial that the verdict of conviction was against the evidence raised the question for review of the sufficiency of the evidence to sustain the verdict.

19. EMBEZZLEMENT (§ 44) — PROSECUTION — SUFFICIENCY OF EVIDENCE.

In a prosecution of the treasurer of a labor union for embezzling funds in his custody, evidence held to sustain a conviction for felony-embezzlement.

20. CRIMINAL LAW (§ 1159)—APPEAL— FINDINGS—CONCLUSIVENESS.

The Supreme Court will not weigh the evidence.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Candy Martin was convicted of embezzlement, and he appeals.Affirmed.

On the 26th day of June, 1909, at the June term of the circuit court of Randolph county, the prosecuting attorney filed in open court an information charging the defendant, Candy Martin, with the crime of embezzlement.The information is based upon section 4556 of the Revised Statutes of 1909, and in substance charges that the defendant, while acting as treasurer of Local UnionNo. 149 of the United Mine Workers of America, a trade organization, on the 1st day of May, 1908, at said county and state, fraudulently and feloniously embezzled the sum of $114.19, the money and property of said local union.At the October term, 1909, of said court, the defendant filed a motion to quash the information.This motion was overruled by the court, and at the same term the defendant was put upon his trial, convicted, and his punishment assessed at imprisonment in the penitentiary for a term of two years.Motions for new trial and in arrest were filed in due time, overruled, and judgment pronounced in accordance with the verdict.The defendant appealed from the judgment to this court.

At the trial the evidence for the state tended to prove the following facts: The United Mine Workers of America is an unincorporated trade organization of coal miners, having for its object the making of agreements as to the wages of laborers and the general well-being of its members in all matters connected with their employment.The organization has national, district, and local unions and officers.There was a local union at Moberly in said county known as "Local UnionNo. 149, Mine Workers of America."The defendant was elected to the office of secretary-treasurer of said local union and assumed the duties of the office in the month of January, 1907.He served as such officer continuously until the 1st day of May, 1908.

It was provided in the by-laws of the local union, which were introduced in evidence, that the secretary-treasurer should have charge of all moneys belonging to the local union and pay all bills and current expenses when attested by the president.It was also made his duty to collect all money due the union, keep an account of the same, and make monthly reports of the money received.It was the duty of the financial secretary of the local union to make out what was called a "check-off list" at the close of each month, showing the dues and charges which each member owed to the union.This list, in accordance with an understanding between the union and the coal company for which the miners were working, was furnished to the treasurer of the coal company each month, and he deducted from the wages paid to each member the amount charged against him in the check-off list.The amounts so deducted were then included in one check by the treasurer of the coal company in favor of the local union.This check was delivered to the treasurer of the union and by him cashed and the money deposited to his credit as such treasurer in a local bank.

In the month of November, 1907, the books of the defendant as...