State v. McClure

• Decision Date: 03 September 1930
• Docket Number: No. 29560.,29560.
• Citation: 31 S.W.2d 39
• Parties: THE STATE v. W.T. McCLURE, Appellant.
• Court: Missouri Supreme Court

31 S.W.2d 39

THE STATE v. W.T. McCLURE, Appellant.

No. 29560.

Supreme Court of Missouri.

Court en Banc, September 3, 1930.

Appeal from Livingston Circuit Court. — Hon. William H. Utz, Special Judge.

AFFIRMED.

Davis & Ashby for appellant.

(1) Appellant is charged in the indictment with having assented to the reception of a deposit, but the verdict of the jury finds him guilty of grand larceny by receiving deposits, which means he was convicted of a crime not charged. Sec. 12, Art. 2, Mo. Constitution; State v. Hinton, 299 Mo. 507, 253 S.W. 722; State v. Burgess, 268 Mo. 407, 188 S.W. 135; State v. Miller, 255 Mo. 223; State v. Grossman, 214 Mo. 233; State v. Hancock, 7 S.W. (2d) 274. (2) Appellant is charged in the indictment with having assented to the reception of a deposit, whereas the proof shows that he personally received said deposit, constituting a fatal variance between the charge and the proof. State v. Sattley, 131 Mo. 464; State v. Wells, 134 Mo. 238; State v. Warner, 60 Kan. 94, 55 Pac. 342; Ex parte Rickey (Nev.), 100 Pac. 134; Coleman v. State (Ark.), 256 S.W. 357. (3) Appellant is charged in the indictment with having assented to a deposit of $4007.55 lawful money, whereas the proof showed that the deposit was a certain draft and check and not lawful money, and for that reason there was a fatal variance between the charge and the proof. State v. Salmon, 216 Mo. 466; State v. Munroe, 273 Mo. 341; State v. Ross, 312 Mo. 510; State v. Mispagel, 207 Mo. 557; State v. Peck, 299 Mo. 454; State v. Fisher (Mo.), 249 S.W. 46; State v. Castleton, 255 Mo. 201; State v. Dodson, 72 Mo. 283; State v. Schilb, 159 Mo. 130; State v. Sheetz (Mo.), 289 S.W. 553. (4) Instruction 9 assumes that there was a failure of the bank and shifts the burden of proof upon appellant to rebut the prima-facie case made by reason of the failure. It was error to so instruct the jury, placing the burden of proof upon defendant to establish his innocence, when the question of failure was in dispute. State v. Walser (Mo.), 1 S.W. (2d) 147; State v. Summers (Mo.), 6 S.W. (2d) 883. (5) Instruction 10 peremptorily directs the jury to take into consideration certain facts in evidence. It uses the word "should" instead of the word "may" and is an infringement upon the province of the jury. State v. Summers (Mo.), 281 S.W. 123; State v. Newcomb (Mo.), 220 Mo. 54. (6) It was the burden of the State to establish criminal intent, and the court erred in refusing Instruction H so informing the jury. Sherwood Commentaries Criminal Law, sec. 1. (a) Whether the offense charged be of common law or statutory origin, intent must be shown. State v. Santino, 186 S.W. 976. (b) There cannot be a crime without criminal intent. State v. Weisman, 225 S.W. 949. (7) It was error to refuse appellant's Instruction K as defendant had a right to receive the deposit if he believed or had good reason to believe that the bank was not in failing circumstances at the time he received it, and on this point said instruction was clearly the converse to State's Instruction 4. Sec. 4025, R.S. 1919. (a) Defendant is entitled to an instruction based on his own unsupported testimony. State v. Fredericks, 136 Mo. 51; State v. Anderson, 86 Mo. 309; State v. Partlow, 90 Mo. 608. (8) The court erred in refusing to sustain defendant's motion to quash the indictment. First, for the reason it is not charged who made said deposit. Second, for the reason it is not charged that said bank was located in Daviess County. Third, for the reason that it is not charged that said deposit was made in Daviess County. Fourth, for the reason it is not charged that defendant had knowledge that said bank was in failing circumstances at the time the deposit was made. Fifth, for the reason it is not charged that said deposit was taken by said bank. State v. Buck, 108 Mo. 622; State v. Buck, 120 Mo. 479; State v. Sanford, 317 Mo. 865, 279 S.W. 73. (9) The transcript of the record filed in the Circuit Court of Livingston County does not show that the Circuit Court of Daviess County ordered the grand jury empaneled that returned the indictment, and does not show that said grand jury was empaneled, charged and sworn by the Circuit Clerk of Daviess County as the law requires, and for these reasons the records of the said Circuit Court of Livingston County did not show that said court had jurisdiction to try said cause and appellant's plea in abatement should have been sustained. Sec. 28, Art. 2, Mo. Constitution; Sec. 6614, R.S. 1919; State v. Buck, 108 Mo. 622, 629; State v. Gowdy, 307 Mo. 352. (10) A.J. Place was not a competent witness to testify as to the solvency of the makers of certain notes held by the bank and was not competent to testify as to the value of certain personal property and real estate held by said bank, and appellant's objection to said testimony should have been sustained, as it was clearly shown that his said testimony was based on facts existing long after the deposit was made, and that his testimony was hearsay, and his conclusion based upon facts long after the deposit was made and not upon his knowledge and experience in the valuations of personal and real property in the community where the bank was located. State v. Sanford, 317 Mo. 865, 297 S.W. 73; State v. Walser (Mo.), 1 S.W. (2d) 150; State v. Beaghler (Mo.), 18 S.W. (2d) 423. (11) C.C. Conrad was permitted to testify over the objections and exceptions of defendant that he had placed in the bank for safekeeping liberty bonds, and that they were hypothecated by appellant to other banks without his consent, which carried the inference that defendant had committed other offenses, and was highly prejudicial to appellant. State v. Shebe (Mo.), 268 S.W. 81; State v. Dixon (Mo.), 253 S.W. 1068; State v. Mo. Pac., 219 Mo. 156; State v. Taylor, 136 Mo. 66; State v. Burlingame, 146 Mo. 208; State v. Owens, 85 Mo. 194; State v. Harris, 73 Mo. 287; State v. Reavis, 71 Mo. 419. (12) It was error to permit the prosecuting attorney over the objections and exceptions of appellant to interrogate him as to why he did not credit certain notes with rent acquired from farm land owned by the bank, creating the inference that appellant had embezzled such rent. It was error to permit the prosecuting attorney to ask the appellant if he did not get Hazelrig to sign his wife's name to a certain note, insinuating that appellant had got Hazelrig to forge his wife's name to said note, and that this was done for the purpose of getting by the bank examiner, and also in asking appellant that if the directors told him to swear to what was not true if he would do so, and saying "he just about said it," meaning that the appellant had sworn falsely and insinuating by questions that appellant had made false statements and that appellant had a private book in which he kept a record of the resources and liabilities of the bank, none of which said testimony was gone into in chief. All of which testimony inflamed and biased the minds of the jury against appellant and was highly prejudicial to him. State v. Sharp, 233 Mo. 286; State v. Webb, 254 Mo. 434; State v. Pfeifer, 267 Mo. 31; State v. Goodwin, 271 Mo. 81; State v. Bowman, 278 Mo. 492; State v. Lasson, 292 Mo. 155; Sec. 4036, R.S. 1919.

Stratton Shartel, Attorney-General, and G.C. Weatherby, Assistant Attorney-General, for respondent.

(1) The court did not err in overruling defendant's motion for a new trial because defendant stood charged with "assenting to the reception of a deposit," when the evidence showed that he actually received the deposit, the defense claiming there was a fatal variance between the formal charge and the proof in this respect. Receiving a thing necessarily embraces or includes the idea of assenting to the reception of that thing. But assenting to the reception of a deposit does not necessarily include the act of receiving. One is an act of commission carrying with it the personal act of the person charged with the offense. The other is more an act of omission carrying with it the idea of failure to act, that is, failure to see that all deposits are refused when once it appears the bank is insolvent or in failing circumstances. One may be guilty of assenting to a deposit without prior knowledge of the particular deposit. This is not true, however, where the charge is that of assenting to a deposit. He is informed that the State may hold him responsible, not only for the act of another but for his own act as well, because he must know that the State may show his assent to a deposit whether it be by proving his personal receipt of the deposit, or by his assent thereto by another. In the instant case the charge is that of assenting to a deposit made by one J.T. Bell in the sum of $4007.55 on April 14, 1925. (2) It is next claimed by appellant that there is a fatal variance because the indictment charged the receiving of lawful money when the proof showed the receipt of a draft. The draft was payable to the depositor. It was indorsed by the payee, handed to defendant for deposit and credit entered on the books of the defendant's bank to the payee. The Commercial Bank was credited with the amount of the draft by the Fidelity National Bank of Kansas City. It was finally paid and charged to the drawer's account on either the 16th or 17th of April. Under this evidence the defendant's bank actually received the money when its account was credited with the amount of the draft on April 15th by the Kansas City bank. It may be true that this credit was subject to a charge back if the bank on which it was drawn refused to honor it, but it was not dishonored. The Commercial Bank was by the payee's endorsement authorized to receive and it did receive the money on the draft. (3) The court did not err in giving Instruction 9. Appellant complains of the instruction on the ground that it assumes the bank failed when that fact was in dispute. If the instruction was erroneous in the...