State v. McCawley

• Decision Date: 30 November 1915
• Docket Number: No. 18934.,18934.
• Citation: 180 S.W. 869
• Parties: STATE v. McCAWLEY.
• Court: Missouri Supreme Court

180 S.W. 869

STATE v. McCAWLEY.

No. 18934.

Supreme Court of Missouri. Division No. 2.

November 30, 1915.

Appeal from St. Louis Circuit Court.

John G. McCawley was convicted of embezzlement as an agent, and appeals. Affirmed.

August Walz, Jr., and Charles F. Krone, both of St. Louis, for appellant. John T. Barker, Atty. Gen., and S. P. Howell, Asst. Atty. Gen., for the State.

WALKER, J.

Indicted in the city of St. Louis under section 4550, R. S. 1909, for embezzlement as an agent, defendant was tried, convicted, and sentenced to two years' imprisonment in the penitentiary. From this judgment he appeals. Upon the approval of a bail bond by the trial court; a supersedeas was granted pending the disposition of the case here.

The Francis H. Leggett Company, a corporation, was engaged in the wholesale grocery business in the city of New York. From June 1, 1913, to late in January, 1914, it employed defendant as an agent or salesman to Sell goods, open new accounts, and develop its business in the city of St. Lot is. In this capacity he sold goods and collected the accounts due therefor, which were sometimes paid in checks and at others in cash, more often the former. The defendant failed to promptly remit to his employer the collections made by him, and in January, 1914, a representative of the company came to St. Louis to settle or adjust the indebtedness of defendant to it. In a conference with this representative, defendant, February 2, 1914, admitted, in a written statement signed by him and witnessed by the representative, that defendant was indebted to the company on account of money received by him from different parties to whom he had sold goods, naming them, and that they had paid him therefor in the aggregate sum of 81,148.51, and he agreed that on the 20th day of February, 1914, he would pay the amount stated in full to the company its office in New York City. On the day succeeding the making of the statement defendant, at the suggestion of the representative of the company, gave the latter a 15-day note for the amount he admitted to be due it. Defendant, on the witness stand, admitted he had collected the money and would make it good, but would not do so until the company paid him a balance he claimed was due him.

I. Proof of Vense.—Deendant contends that the venue was not proved. No witness testified directly that the offense was committed in the city of St. Louis, but it was not necessary that proof of the place of the commission of the crime be made by direct or positive evidence. State v. Lee, 228 Mo. 480, 497, 128 S. W. 987. If the fact may be reasonably inferred from all the facts and circumstances, this will suffice. The indictment charges the commission of the crime in the city of St. Louis. The court instructed the jury to find the defendant guilty if they believed and found from the evidence that the crime was committed as charged, viz., in the city of St. Louis. Defendant made a statement admitting his guilt to the representative of the company which from its words discloses that it was made in said city. This statement names several business firms, which defendant admitted had paid him money for his employer, whose bills showed that their respective places of business were in said city. It was also admitted by defendant that he had, at the times the goods were sold to these firms, been in the employ of the Leggett Company as their representative In said city. From these facts not only the reasonable inference may be drawn, but no other inference is permissible than that the city of St. Louis was the place of the commission of the crime. Venue is a fact which may be proved like any other fact; and its proof in this case was sufficient.

II. Sufficiency of Evidence.—Defendant contends that there was no proof to establish the conversion of the money. It is true that the payments made to defendant were principally in checks, but upon their receipt he converted them into cash, which, as stated, he admitted he had in the amount charged in the indictment at the time of the trial. This was ample proof to sustain the charge of appropriating the money of the company to his own use. State v. Wissing, 187 Mo. loc. cit. 106, 85 S. W. 557; State v. Laughlin, 180 Mo. loc. cit. 361, 79 S. W. 401; State v. Martin, 230 Mo. loc. cit. 697, 132 S. W. 595.

The nature of the defendant's relation to his employer is not only shown by the oral testimony, but by his contract of employment, which defines his relation to have been that of an agent. The authorize a conviction these essentials of the crime charged should be present in the proof: That he received the checks, which he converted into money and appropriated to his own use in the course of his employment, and that the money thus converted belonged to his employer, from all of which his felonious intent may be inferred as a legal conclusion. State v. Moreaux, 254 Mo. loc. cit. 406, 162 S. W. 158. These essentials having been proved, the verdict was authorized.

III. Verdict.—Complaint is made as to the form of the verdict. There was but one count in the indictment and it charged the embezzlement of a gross sum. The facts were that defendant received the payments at different times, in different amounts, usually in checks, and after receiving same converted them into cash. The charge as made might have been sustained by showing the embezzlement of the entire amount at one time or of less amounts at different times, which would altogether constitute the entire amount charged or any portion thereof, if sufficient to constitute a felony. While the defendant might have required the state,...