State v. Mispagel

• Decision Date: 10 December 1907
• Citation: 106 S.W. 513,207 Mo. 557
• Parties: STATE v. MISPAGEL.
• Court: Missouri Supreme Court

106 S.W. 513

207 Mo. 557

STATE v. MISPAGEL.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. EMBEZZLEMENT — INFORMATION — REQUISITES—DESCRIPTION OF PROPERTY—PROOF.

In an information for embezzlement, as in an information for larceny, the property embezzled must be described, and the proof must be in substantial accord with such description.

2. SAME—PLEADING, PROOF, AND VARIANCE.

A charge of embezzlement or larceny of money is not sustained by proof of the embezzlement or larceny of a draft or check.

3. SAME—JURISDICTION.

Defendant, as cashier of a bank in St. Charles county, fraudulently drew a draft on a bank in the city of St. Louis, which was indebted to defendant's bank, and the money was paid in St. Louis to defendant's agent and by the agent applied to the satisfaction of defendant's individual account. Held, that the conversion of the money occurred in St. Louis, and that defendant could be prosecuted for embezzlement in that jurisdiction only, it being immaterial that defendant was not personally present in St. Louis at the time of the conversion.

4. SAME—ELEMENTS OF OFFENSE—STATUTORY PROVISIONS.

The statute defining embezzlement does not make a failure to account for a trust fund or a fund received by an agent or officer an offense, but the essence of the offense is the wrongful conversion of the fund, and while failure to account therefor may constitute evidence tending to establish the act of conversion, the failure to account does not constitute the offense of embezzlement of the fund.

Appeal from Circuit Court, St. Charles County; James D. Barnett, Judge.

Anton Mispagel was convicted of embezzlement, and appeals. Reversed.

Defendant was tried and convicted in the circuit court of St. Charles county, and was by said court sentenced to serve two years in the penitentiary on an information in this language:

"Theodore C. Bruere, prosecuting attorney within and for the county of St. Charles, in the state of Missouri, upon his oath, informs the court that Anton F. Mispagel, late of the county of St. Charles aforesaid, on the 28th day of December, 1903, at the county of St. Charles aforesaid and state aforesaid, being then and there an officer and agent, to wit, the cashier of and for a certain incorporated company, to wit, the St. Charles Savings Bank, and the said Anton F. Mispagel being then and there not a person under the age of sixteen years did then and there by virtue of his said employment as such officer and agent as aforesaid of the said incorporated company have, receive, and take into his possession and under his care certain money to a large amount, to wit, to the amount of four thousand dollars, lawful money of the United States and of the value of four thousand dollars, of the property and moneys belonging to the said incorporated company; and the said Anton F. Mispagel did afterwards the said money then and there feloniously embezzle, and fraudulently and feloniously convert the same to his own use, without the assent of his employer, the said incorporated company, the owner of the said money; and so the said Anton F. Mispagel did then and there, in manner and form aforesaid, the said money, of the property of the said incorporated company, feloniously steal, take, and carry away, and converted the same to his own use contrary to the form of the statute in such case made and provided and against the peace and dignity of the state. Theodore C. Bruere.

"And Theodore C. Bruere, prosecuting attorney within and for the county of St. Charles, in the state of Missouri, upon his oath informs the court that Anton F. Mispagel, late of the county of St. Charles aforesaid and state aforesaid, on the 28th day of December, 1903, at the county of St. Charles aforesaid, being then and there an officer, to wit, the cashier of and for a certain incorporated company, to wit, the St. Charles Savings Bank, and the said Anton F. Mispagel being then and there not a person under the age of sixteen years, certain money to the amount and value of four thousand dollars, the same being then and there lawful money of the United States, but the description of which said money is to the prosecuting attorney unknown, and which said money was then and there the money and personal property of the said St. Charles Savings Bank, a corporation, as aforesaid, did unlawfully, fraudulently, and feloniously embezzle and convert to his own use, without the assent of the said incorporated company, his employer, which said money had then and there come into the possession and under the care of him, the said Anton F. Mispagel, by virtue of his said employment as such officer, as aforesaid, of said incorporated company, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state. Theodore C. Bruere, Prosecuting Attorney."

It appears that there were 11 other similar informations pending in that court against the defendant and those with this one charged embezzlements in the aggregate sum of $77,752.37. There were also two indictments in the city of St. Louis, charging in each the embezzlement of $1,000. It also appears that the bank had demanded of defendant and his bondsmen an alleged shortage of $90,326.15, and later in three separate suits had sued defendant and his bondsmen for the aggregate sum of $106,769.52. The information hereinabove set out is known as "Information No. 10." To this information defendant interposed the following motion: "Comes now the defendant, by his attorneys, and moves the court to quash the information filed herein because: (1) The facts alleged therein constitute no defense. (2) The allegations are duplicitous in alleging in the first count that the defendant was both an officer and an agent of the incorporated company, and in the second count that he was simply an officer of said incorporated company. (3) Said information fails to identify the incorporated company by an allegation of the state or county by virtue of which it was incorporated, or by alleging the place of business of said incorporated company. (4) Because at the time of filing the information, and long time prior thereto, and at the time of the alleged embezzlement, Theo. C. Bruere, the prosecuting attorney, was an officer, to wit, a member of the board of directors of the St. Charles Savings Bank, and interested in the funds and properties thereof." On this motion it was admitted that the prosecuting attorney filing the information was a director and stockholder in the St. Charles Savings Bank during the years 1903, 1904, and 1905. The court overruled the motion and this is assigned as error.

Thereupon the defendant filed a motion to require the state to elect upon what transaction it would stand, in which motion is set out all the facts above stated as to the number of informations, the amount of the total alleged embezzlements, the amount of the claim or demand of shortage as made by the bank against defendant and his bondsmen, the amount sued for in the three several suits, and also further alleging that the demands aforesaid were in writing and covered a period of 14 years, including numerous transactions and items, and that no such sum as $4,000 appeared in said items. On this motion were offered in evidence the informations and indictments aforesaid, the itemized demand aforesaid, and the petitions in the three several suits. This motion was overruled, and the action of the court thereon assigned as error in motion for new trial.

To prove the alleged embezzlement of $4,000 named in the information, the state introduced drafts as follows: Draft for $500, drawn October 26, 1903, in favor of Edwards & Sons, a brokerage firm in St. Louis, on the American Exchange Bank; draft for $1,000, drawn February 12, 1903, in favor of Edwards & Sons, on the Mechanics' National Bank; draft for $200, drawn June 3, 1903, in favor of Edwards & Sons, on the Mechanics' National Bank; draft for $1,000, drawn November 20, 1902, in favor of the Orthwein Investment Company, a brokerage concern doing business in St. Louis, on the American Exchange Bank; draft for $500, drawn July 1, 1902, in favor of the Orthwein Investment Company, on the Mechanics' National Bank. These were described by the prosecuting attorney in his opening statement to the jury, and it was further stated that he expected to show the embezzlement of the $4,000 by these said six drafts. When the first described draft was first offered in evidence, the defendant again renewed his motion to require the state to elect upon what transaction it would proceed. This was overruled, and defendant excepted.

Upon the close of the evidence offered by the state, the defendant demurred in this language: "Comes the defendant at the conclusion of the evidence on behalf of the plaintiff, and demurs to the same as insufficient to sustain the allegations of the information, and moves the court to instruct the jury to acquit, on the ground, and for the reasons, as follows: (1) The allegation is the embezzlement of money and the evidence tends to show the embezzlement, if any, of drafts or commercial paper. (2) The allegation is embezzlement in the county of St. Charles, and the evidence shows that any conversion of drafts or money that did occur occurred in the city of St. Louis. (3) The money alleged to have been converted to his own use by the defendant was in the city of St. Louis and not in the county of St. Charles. (4) The money alleged to have been converted by defendant was not in his possession at all. (5) The proof fails to show that defendant had in his possession any money whatsoever, at the times of drawing the drafts, or at any other time, or that there was any money in his custody in the bank of which he was cashier or belonging to said bank. (6) The evidence is insufficient to show a prima facie case, and there is a fatal variance between the allegations of the information and the proof offered in...