State v. Merkel

• Citation: 189 Mo. 315,87 S.W. 1186
• Parties: STATE v. MERKEL.
• Decision Date: 16 May 1905
• Court: United States State Supreme Court of Missouri

87 S.W. 1186

189 Mo. 315

STATE v. MERKEL.

Supreme Court of Missouri, Division No. 2.

May 16, 1905.

EMBEZZLEMENT — EVIDENCE — INTENT — ARRANGEMENTS WITH PROSECUTOR—ADMISSIONS —INSTRUCTIONS—APPEAL—PRESERVATION OF ERRORS.

1. The intent necessary to constitute the offense with which defendant is charged may be inferred from the doing of the wrongful act.

2. Evidence held sufficient to sustain a conviction of embezzlement by an employé from his employer.

3. Where an employé wrongfully takes his employer's money with a felonious intent to deprive him of it, no subsequent arrangement between the employé and his employer for the refundment of the money, or action under such arrangement, can change the criminal nature of the act.

4. An instruction, the objection to which is not renewed in the motion for new trial, is not before the Supreme Court for review.

5. In a prosecution for embezzlement, where it is shown that defendant made statements and admissions as to the conversion of money collected by him for his employer, a charge that statements made by defendant in relation to the embezzlement must all be considered together; that the state is entitled to the benefit of anything said by defendant against himself, and such statements are presumed to be true unless negatived by other evidence; that the jury are not bound to, but may, believe what defendant said for himself in such statements; and that it is for the jury to consider, under all the facts and circumstances, how much of the whole statement they deem worthy of belief—is proper.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

George Merkel was convicted of embezzlement, and appeals. Affirmed.

The defendant was indicted in the circuit court of the city of St. Louis at the April term, 1903, charged with the embezzlement of the sum of $337, as agent and clerk, from his employer, Alexander Landau. At the October term of said court the defendant was tried, convicted, and his punishment assessed at imprisonment in the penitentiary for two years. Motions for a new trial and in arrest of judgment were filed, overruled, and defendant appealed to this court.

At the trial the evidence for the state tended to prove the following facts: In the year 1902 Alexander Landau was engaged in the wholesale meat business in the city of St. Louis under the name of the Missouri Dressed Beef Company. He alone was interested in said business. The defendant, George Merkel, was employed by Landau as salesman and collector for the said Missouri Dressed Beef Company. There were several such salesmen in the employ of said company, and they were sometimes called "drummers." As one of said salesmen, it was the duty of the defendant to visit the butchers of the city at their places of business, sell them beef, collect the bills therefor, and pay the money so collected over to the bookkeeper of the company. The method by which this business was transacted was that when the defendant made the sale he took the customer's order for the beef, reported the order, written on a slip of paper, to the bookkeeper. The beef was delivered upon this order. The bills for the sales so made through the week were made out and handed to the salesman for collection the following Monday morning. It was the duty of the defendant to pay over to the bookkeeper each day all moneys, if any, collected on that day. In the month of August, 1902, bills against four customers—. Mr. Zimmer, Oeschner, Hesch, and one other —name not given—were handed to the defendant for collection. The total amount of these bills was $395.25. The defendant collected said bills when due, but failed to report the collection thereof and pay the sums so collected to the bookkeeper. After said accounts were some time past due—one of them over 30 days—the bookkeeper asked the defendant as to the cause of the delinquency, and repeated the inquiry at different times thereafter. The defendant made various excuses all of which were untrue, stating that the customer was ill, that he was behind in other payments, etc. Finally Landau's attention was called to the matter, and, his suspicions being aroused, he instructed another employé, in the presence of the defendant, to go and see why the delinquent customer had not paid. The defendant then called his employer aside, and admitted that he had collected these accounts, saying: "I am behind. I have been playing the ponies, and have lost it. I will make every cent of it good." A statement of the shortage was then given by the defendant to Landau, giving the amounts and names of the persons from whom he had collected and failed to pay over to the house. The defendant continued to work for Landau a short time thereafter under an arrangement by which a part of his salary each week was to be applied on the shortage. After paying back about $58 in that way, the defendant became dissatisfied, and, against Landau's objection, quit his position, and went to work for another firm. At the close of the evidence for the state the defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused. Defendant offered evidence showing his good reputation for honesty and integrity. This sufficiently indicates the facts developed at the trial to enable us to determine the legal propositions involved in this cause. At the close of the evidence the court instructed the jury, and the cause was submitted to them, and they returned a verdict of guilty, and assessed his punishment at imprisonment in the penitentiary for two years, and judgment upon the verdict was accordingly entered. From this judgment defendant prosecuted his appeal, and the record is now before us for consideration. It is unnecessary to reproduce the instructions of the court. There were only two complained of in the motion for new trial, and they will be given...