State v. Miller, 32712.

• Decision Date: 03 March 1933
• Docket Number: No. 32712.,32712.
• Parties: THE STATE v. HENRY J. MILLER, Appellant.
• Court: Missouri Supreme Court

57 S.W.2d 1080

THE STATE v. HENRY J. MILLER, Appellant.

No. 32712.

Supreme Court of Missouri, Division 2.

March 3, 1933.

Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.

AFFIRMED.

Calvin, Vandeventer & Kimbrell for appellant.

(1) The evidence showed that the defendant, Miller, at all times had legal title to, and the ownership of, the Donaldson note, the cashier's check given in payment of said note, and the proceeds thereof; and, therefore, showed that the money alleged in the indictment to have been embezzled was not property "belonging to any other person," i.e., a person other than the defendant; Sec. 4079, R.S. 1929; 9 R.C.L. 1269; 20 C.J. 416. (a) The evidence did not show that the defendant, Henry J. Miller, had been or was divested of the title to, and the legal ownership of, the Donaldson note, the cashier's check given in payment of said note, and the proceeds thereof; and did not show that the money alleged in the indictment to have been embezzled was money "belonging to any other person," i.e., a person other than the defendant; Secs. 2659, 2677, R.S. 1929; State v. Williamson, 118 Mo. 146, 23 S.W. 1054; St. Clair v. State, 100 Ala. 61, 14 So. 544; Parli v. Reed, 30 Kan. 534, 2 Pac. 635; and authorities cited under subdivision A. (b) The evidence did not show the commission by the defendant of the offense alleged in the indictment, to-wit, the embezzlement of money. State v. Mispagel, 207 Mo. 557, 106 S.W. 513; State v. Casleton, 255 Mo. 201, 164 S.W. 492; State v. Peck, 299 Mo. 454, 253 S.W. 1019; State v. Ross, 279 S.W. 411. (c) If the evidence shows the commission of any criminal offense, which appellant denies, the offense shown was the embezzlement of a cashier's check and not the embezzlement of money. State v. Fischer, 297 Mo. 164, 249 S.W. 46; and authorities cited under subdivision C. (2) The court erred in permitting counsel to propound to a witness for the State the following question: "I will ask you, after you look at State's Exhibit No. 1, if that is a list of notes that were belonging to you?" and in permitting the witness to whom the question was propounded to answer the same in the affirmative, over the objection and exception of the defendant for the reason that the question called for a conclusion upon the part of the witness and not for a statement as to any fact within the knowledge of such witness.

Stratton Shartel, Attorney-General, and Denton Dunn, Assistant Attorney-General, for respondent; Ray Mabee of counsel.

(1) Stoll's testimony that the list of notes produced belonged or had belonged to him was properly admitted as a statement of fact over the objection, "that is calling for a conclusion and not a statement of fact." It involved the simple question of beneficial ownership right on its fact, and of course was subject to cross-examination, if there was, in fact, any question about the ownership. Strothers v. McFarland, 194 S.W. 882; 22 C.J. 638, sec. 732, note 3 citations; 1 Wharton's Criminal Evidence (10 Ed.) 954, sec. 455; 4 Wigmore on Evidence (3 Ed.) 179, sec. 1960 and citations; 8 C.J. 386, note 43 citing: Cantrell v. Davidson, 180 Mo. App. 410; Carter v. Butler, 264 Mo. 323; State v. Schilb, 159 Mo. 130; State v. Morrs, 313 Mo. 98. Also on the whole evidence, including his written receipt of having the Donaldson note for collection, the defendant "is estopped by his acts to deny prosecutor's ownership of the property embezzled." 20 C.J. 415, 416, note 52; State v. Whitworth, 30 Wash. 47, 70 Pac. 254; State v. Gould, 46 S.W. (2d) 886. (2) This objection was made after affirmative answer had been made to the question asked, and so was too late. No motion to strike out was made. State v. Van Valkenburgh, 285 S.W. 978; Rockenstein v. Rogers, 31 S.W. (2d) 792.

TIPTON, J.

The grand jury returned an indictment in the Circuit Court of Jackson County, Missouri, charging the appellant under Section 4079, Revised Statutes 1929, with embezzlement, as the agent of William Stoll, of the sum of $4916.25. He was convicted and sentenced to two years' confinement in the penitentiary. He has duly appealed to this court.

The complaining witness, William Stoll, lived in Drumwright, Oklahoma, and had been doing business with this appellant since the year 1916. At that time the appellant was engaged in the mortgage loan business in Kansas City, Missouri, in partnership with William P. Sayre, which partnership was dissolved in 1927. Stoll continued to do business with appellant after the dissolution of this firm. Stoll had some notes which he placed in appellant's hands for collection. The receipts were given for these notes in the handwriting of the appellant, among which was a note known as the Donaldson note for the sum of $4750, due September 1, 1928. Stoll testified that he later learned that the note and interest had been collected, but he received no portion of the proceeds of the note. In September, 1930, he employed Jerome M. Joffee, an attorney-at-law in Kansas City, to help him collect this note. There was a conference held in which Joffee, Stoll and his wife, and the appellant and his wife were present. At this time the appellant stated that he did not have the Donaldson note, that he had collected it when due, that he had invested the proceeds in numerous enterprises, and that he intended to pay it back. The Donaldson note was secured by a loan on property in Kansas City. Frank F. Catron representing the owner of the property came to see the appellant in September, 1928, and asked that the loan be renewed. The appellant refused to renew the note and Catron then brought the appellant a cashier's check in the sum of $4916.25, at which time the appellant indorsed the Donaldson note and delivered same to Catron, so that the mortgage might be released. The cashier's check was drawn on the Liberty National Bank payable to the order of Frank Catron. This check was introduced in evidence showing the indorsements of Frank Catron and the appellant. Herbert A. Sacks, an employee of the bank, testified that the check had been paid.

Such further facts as it might be necessary to state will be given in connection with the points on which they bear.

The questions presented for decision relate to (1) the admissibility of the testimony; (2) the sufficienty of the evidence to sustain the conviction.

[1] I. It is the appellant's contention that the crucial question in this case is whether the ownership of the Donaldson note was in Stoll or the appellant. Therefore, the trial court erred in overruling this objection to the following question, which was answered in the affirmative, because it called for a conclusion and not a statement of fact.

"Q. (By Mr. Alton) Mr. Stoll, I will ask you after you look at State's Exhibit No. 1 if that is a list of notes that were belonging to you?"

This is a statement of fact as distinguished from a conclusion of law.

"Thus it is stated in 17 Cyc. 223, that where the conclusion offered, although to a certain extent resting on the application of legal principles, is in the main a mere statement of fact, the witness will be allowed to state it." [Strothers v. McFarland (Mo. App.), 194 S.W. 881, l.c. 883.]

If the appellant had desired, he could have cross-examined this witness relative to the ownership of this note. He did not see fit to do so. We believe the court properly overruled the appellant's objection to the question above quoted. [1 Wharton's Crim. Ev. (10 Ed.) 954, sec. 455; 4 Wigmore on Evidence (3 Ed.) 179, sec. 1960; Strothers v. McFarland, supra, McMillan v. Schweitzer, 87 Mo. 402.]

This assignment of error is overruled.

[2] II. The appellant contends that the court erred in refusing to give his instruction in the nature of a demurrer offered at the conclusion of all the evidence, because there is no showing that the title to the Donaldson note was not in the appellant and the cashier's check given in payment of the note and the proceeds thereof were not property "belonging to another person." That is, a person other than this appellant. The payee in the Donaldson note was the appellant and the...