State v. McWilliams

• Decision Date: 15 February 1916
• Docket Number: No. 19026.,19026.
• Citation: 184 S.W. 96,267 Mo. 437
• Parties: STATE v. McWILLIAMS.
• Court: Missouri Supreme Court

184 S.W. 96

267 Mo. 437

STATE v. McWILLIAMS.

No. 19026.

Supreme Court of Missouri, Division No. 2.

February 15, 1916.

Rehearing Denied March 31, 1916.

Appeal from Circuit Court, Daviess County; Fred Lamb, Judge.

Charles E. McWilliams was convicted of embezzlement, and he appeals. Affirmed.

W. S. Herndon and R. H. Musser, both of Plattsburg, John Leopard, of Gallatin, and Paul D. Kitt, of Chillicothe, for appellant. John T. Barker, Atty. Gen., and Shrader P. Howell, Asst. Atty. Gen., for the State.

WALKER, J.

In November, 1913, appellant was charged in an information filed in the circuit court of Livingston county with embezzlement under section 4550, R. S. 1909. Upon a trial in the circuit court of Daviess county, to which the case had been transferred by change of venue, appellant was convicted and sentenced to four years' imprisonment in the penitentiary. The original information was in one count. Appellant moved to quash same on the general ground that it did not state facts sufficient to constitute a cause of action. This motion was by the court overruled. After the case had been transferred to the circuit court of Daviess county in June, 1914, the prosecuting attorney of Livingston county filed in the circuit court of Daviess county an amended information charging the appellant with the same offense as in the original, but in two counts, one for the embezzlement of money, and the other for the embezzlement of a check. On the day said amended information was filed, the appellant announcing ready for trial, a jury was sworn and impaneled, and the trial proceeded, but before a verdict was rendered the court, on its own motion, stopped the proceedings and quashed the amended information, and ordered that the appellant be held for trial on the original information. Thereafter, on December 10, 1914, appellant filed a plea in bar on the ground that, having been put upon his trial on the amended information, and a jury having been impaneled and sworn to try him, he had been put in jeopardy, and hence should not again be required to answer for the same offense. This plea was overruled. Appellant then filed an application for a continuance on the ground of the absence from the state of a stenographer who had formerly been in his employ, alleging that said witness, if present, would testify that Greger had told appellant to use the money he had obtained from Bartlett Bros. until the second loan was obtained and pay him (Greger) interest on same. This motion was overruled, and appellant waived formal arraignment, entered a plea of not guilty, and a jury was impaneled and sworn to try the cause. The trial progressed, and on December 12, 1914, the jury returned a verdict finding the appellant guilty as stated, and from this judgment he appeals.

In the spring of 1913 Charles E. Greger owned a farm in Livingston county burdened with two deeds of trust, one for $3,000, and the other for $1,600. Both were held by Frank B. Caesar. The notes secured by these deeds of trust becoming due, the owner desired their payment. The appellant at the time was in the real estate and loan business in Chillicothe, and Greger approached him for the purpose of securing a loan to enable him to take up these notes and release his farm from the deeds of trust. The first conversation in regard thereto between appellant and Greger was in the latter part of March, 1913, and as a result of same Greger filled out, at appellant's direction, an application to Bartlett Bros., of St. Joseph, for a loan of $3,600. After some correspondence between Bartlett Bros. and the appellant, the former agreed to make the loan to the amount of $3,400 on the Greger land, and on April 14, 1913, a note and deed of trust were executed by Greger to Bartlett Bros. for that amount, and same were delivered to appellant to be forwarded to Bartlett Bros. At the same time another note and deed of trust were executed for the sum of $1,400, which sum of money was to be obtained from a source other than Bartlett Bros. When it had been ascertained that the money could be obtained from Bartlett Bros., Greger made and delivered to the appellant, at the latter's request and direction, the following paper:

"Utica, Mo., April 1st, 1913. Bartlett Bros. Land & Loan Company, St. Joseph, Mo. — Gentlemen: Please pay to Charles E. McWilliams or order the proceeds of my loan of $3,400 negotiated by you for me. I hereby appoint said Charles E. McWilliams my agent to settle with you in full for said loan. Charles E. Greger."

On the completion of the abstract of title of the Greger land and its examination and approval by Bartlett Bros. on June 14, 1913, they forwarded to appellant their check, payable to him, for $3,298, being the proceeds of the $3,400 which they had agreed to loan Gregor, less the commission. A few days prior to the forwarding of this check appellant had written Bartlett Bros. that he had completed the arrangements for the second loan, but it is further shown by the evidence that this had not been done, and that the second deed of trust was never recorded, nor was the note representing it ever negotiated. The check for $3,298 sent by Bartlett Bros. to appellant was indorsed by a stenographer in his office and placed to his credit in the People's Savings Bank of Chillicothe. None of this money was ever paid to Greger, but all of it was checked out, either by the appellant or persons in his office authorized to check on his account, and in November preceding the trial the entire amount had been thus withdrawn from the bank, leaving only a balance of 94 cents. Nor was any of the proceeds of this check ever paid to Caesar, the owner of the two deeds of trust. Appellant never at any time disclosed to Greger that he had received the $3,298 or any other amount of money from Bartlett Bros. by reason of the execution of the note for $3,400 and deed of trust by Greger to said Bartlett Bros. to secure same. Upon the consummation of this loan by the delivery made by appellant to Bartlett Bros. of the note and deed of trust for $3,400 they at once placed the deed of trust upon record. Greger made frequent visits to appellant's office in Chillicothe after he had delivered the note and deed of trust to him, in an effort to ascertain whether he had received the money, but could not find him, although these visits were repeated at intervals from July, 1914, to the day of the trial, December 10, 1914. He says that during this time he was in California for his health. Appellant on the witness stand testified that a few days after the receipt of the money from Bartlett Bros. he told Greger the money had been received, but that he had not yet been able to negotiate the second loan for $1,400. At that time appellant says Greger suggested that he would see the owner of the notes secured by deed of trust and endeavor to induce him to take the second loan. In the meantime appellant says he talked to Caesar and tried to get him to take the $3,298 which had been received from Bartlett Bros. and apply it on the two notes aggregating $4,600, but that Caesar had refused so to do. Appellant could not remember that Greger had ever given him a note in payment for his services in securing the loan. Shown a letter that he had addressed to Bartlett Bros. on June 13, 1914, in which he said, "We have been ready for a long time for our part of the deal and have the papers for the second loan on record and are awaiting your money," he admitted that the statement therein made was not true, but said when he wrote the letter he had the promise of the money to cover the second loan for $1,400, and had given directions to some one in his office to have the deed of trust recorded, and thought it had been done. He further admitted that the check received from Bartlett Bros. in the sum of $3,298 had been deposited to his credit in the People's Savings Bank in Chillicothe and had been checked out either by himself or some one in his office. When asked if it had been spent for his private benefit, he answered evasively, but admitted that he had never paid the money to Greger; his excuse being that no demand had ever been made for it, that he had been gone several months, and had not seen Greger during that time, that he had never paid the money to Bartlett Bros., and had never given Greger a slip of paper or anything else showing he had used it, and that this was his customary way of transacting business of this character. Caesar, who owned the first and second deeds of trust, denied that appellant had ever offered to pay him the $3,298 which had been received by appellant from Bartlett Bros. or any other sum, or that appellant had offered to give him any additional security as an inducement for him to take a second mortgage.

The charging part of the original information is as follows:

"That Charles E. McWilliams on or about the 14th day of June, A. D. 1913, at said county of Livingston and state of Missouri, being then and there the agent of a certain private person, to wit, of one Charles E. Greger, and the said Charles E. McWilliams being then and there not a person under the age of 16 years, did then and there, by virtue of his said employment as agent of the said Charles E. Greger, have, receive, and take into his possession and under his care certain money to a large amount, to wit, to the amount of thirty-four hundred dollars, lawful money of the United States and of the value of thirty-four hundred dollars, of the property and moneys belonging to the said Charles E. Greger, and the said Charles E. McWilliams the same money then and there feloniously did embezzle and fraudulently convert to his own use, without the assent of his employer, the said Charles E. Greger, the owner of said money, and the said Charles E. McWilliams the said money, in manner and form aforesaid, feloniously did steal, take, and carry away, against the peace and dignity of the state."

I. Information. — The information...