State v. Morro

• Decision Date: 26 February 1926
• Docket Number: No. 26884.,26884.
• Citation: 281 S.W. 720
• Parties: STATE v. MORRO.
• Court: Missouri Supreme Court

281 S.W. 720

STATE v. MORRO.

No. 26884.

Supreme Court of Missouri, Division No. 2.

February 26, 1926.

Motion for Rehearing Overruled March 20, 1926.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Richard Morro was convicted of embezzlement, and he appeals. Affirmed.

See, also, 280 S. W. 697.

Clarence Wofford and Bert S. Kimbrell, both of Kansas City, for appellant.

North T. Gentry, Atty. Gen., and Wm. L. Vandeventer, Asst. Atty. Gen., for the State.

WHITE, J.

The grand jury of Jackson county, October 26, 1923, presented an indictment against the defendant charging that December 26, 1922, while cashier of the Corn Exchange Bank, a corporation of Kansas City, he embezzled the sum of $4,900, the property of that bank. February 28, 1924, the defendant was found guilty by a jury, his punishment assessed at two years in the penitentiary, and he appealed from that judgment.

The evidence introduced by the state tended to show that the Corn Exchange Bank began business in 1920, with the defendant as its cashier, which office he held until June 14, 1923. December 22, 1922, he received a check from the International Life Insurance Company for $5,000 to pay for, a time certificate of deposit, which was duly issued to that company, numbered 102, for the sum of $5,000, payable six months after date, with interest at 3 per cent, per annum.

December 22d, the date on which the check was received by the defendant, the certificate of deposit register of the Corn Exchange Bank showed an entry of certificate of deposit No. 102 for $100 to J. T. Shumway. No certificate of that number to the International Insurance Company was entered on the register, and no money received on the check was found in the cash except the $100 credited to Shumway.

Another certificate of deposit, No. 107, was Issued March 31, 1923, to the International Life Insurance Company for $5,000, deposited by that company, but No. 107 was registered on the book to A. G. Barter for $100, as of March 15th, instead of March 31st. Thus in each of these transactions there was a shortage of $4,900. That is, the bank issued certificates of deposit for $10,000, and only $200 was credited in the register, or found in the cash to account for it.

A third certificate of deposit for $5,000, No. 109, was issued to the International Life Insurance Company April 27, 1923, and was registered to J. T. Shumway for $100.

June 5, 1923, the clearing house examiner of Kansas City, examining the books of the Corn Exchange Bank, discovered that the cash in the bank was long $4,900. He called the defendant's attention to it, and it was found that a certificate had been issued to the International Life Insurance Company, No. 109, for $5,000, while the record showed certificate of that number issued to Shumway for $100. The total cash received for the certificate, $5,000, was in the bank. The inference is that the defendant had not had time, or had not seen fit as yet, to extract the $4,900 from the bank's cash, as he had in the other two cases. When that irregularity was shown to the defendant, he corrected the entry in the certificate register, showing certificate No. 109 was $5,000 to the International Insurance Company instead of to Shumway for $100.

Soon afterwards Mr. Biggerstaff, manager and examiner of the Kansas City clearing house, ordered an examination of the Corn Exchange Bank, and in that examination the irregularities were discovered. The defendant broke down; said that he was short $42,000; admitted that he had issued the certificates 102 and 107 for $5,000 each; made the false entry of $100 in each case to the wrong person; and had made away with the $4,900 in each case. On this evidence he was found guilty, as stated.

I. It is first claimed by appellants that a case was not made out because the corpus delicti, aside from the confession of the defendant, was not established. Defendant invokes the rule as stated in State v. Young, 140 S. W. 873, 237 Mo. loc. cit. 177, that there must be independent proof of the corpus delicti, that is, that a crime was in fact committed, before the confession of a defendant charged with the crime will support a verdict of guilty.

In this case it is difficult to apply that general rule. For instance, it is said that in a murder case, to prove the corpus delicti, the state must show the death of the person alleged to have been murdered, and the criminal agency of someone causing the death. State v. Barrington, 95 S. W. 235, 198 Mo. loc. cit. 113; State v. Campbell, 257 S. W. 131, 301 Mo. loc. cit. 621. If the fact of a murder or arson or a robbery is sufficiently proved, then a confession by the person charged with the crime that he was the guilty party would complete the case. But, unless and until that independent proof of the corpus delicti is presented, such a confession would not be admissible, and, if admitted, would not be sufficient to establish the guilt of the defendant. The difficulty of applying that principle in a case like this is apparent. The statute (Rev. St. 1919, § 3327), under which the defendant was convicted, makes it a crime for any agent, clerk, or servant of a private person or of any partnership, except of a person under sixteen years of age, or for any officer, agent, clerk, servant, etc., of any incorporated company, to embezzle or convert to his own use, without the assent of his master or employer, any money, etc., which shall have come into his possession or into his care by virtue of his employment.

It will be seen at once that under a charge for violation of that statute it is impossible to establish the corpus delicti without showing the position and relation to the employer of some person charged with the crime. And in this case the proof that the crime was committed would be inseparably connected with proof that the defendant, or some other like employee of the corporation, committed it. 7 Ruling Case Law, p. 773, has this to say about corpus delicti in a case of this kind:

"Where, however, the crime is of such a nature that the body of the offense is intimately connected with the question of whether or not the accused is guilty, as in forgery and false pretenses, the difficulties are multiplied manifold, and it is probably due to this reason that so very few courts have attempted in unequivocal terms to define just what is meant by the phrase `corpus delicti' in reference to particular crimes."

Here, as stated above, the evidence, aside from the confession of the defendant, shows the following:

The certificate of deposit register, December 22, 1922, shows in the defendant's handwriting certificate No. 102 for $100, issued to J. T. Shumway. Defendant was at the time cashier, and had general charge of the affairs of the bank. The evidence warrants the inference that no such certificate was ever issued. It was not shown that such a person as Shumway existed. On that date the International Life Insurance Company drew a check for $5,000, payable to the Corn Exchange Bank; that check was indorsed "Corn Exchange Bank" in the defendant's handwriting. It was numbered 161350, and stated that it is for a certificate of deposit for $5,000, payable six months after date. It was directed to the American Savings Bank, Springfield, Mo., and was duly paid.

Certificate of deposit No. 102 was issued December 26th to the International Life Insurance Company for $5,000, due six months after date, signed in his own handwriting, by Richard Morro, cashier of the Corn Exchange Bank. And this certificate of deposit was paid June 25, 1923, by the Corn Exchange Bank.

No money was "received by the bank representing that certificate of deposit, except the $100 credited as received from Shumway, so that the Corn Exchange Bank lost $4,900 by the transaction.

A letter was introduced written by Morro as cashier of the Corn Exchange Bank, dated September 26, 1922, addressed to the International Life Insurance Company, in which he stated that for the check from the insurance company, No. 161350, the time certificate of deposit No. 102 for $5,000 was issued to the International Life Insurance Company.

This proof is sufficient to show that the defendant received $5,000 for the bank; accounted for only $100 of the amount; and deprived the bank of the remaining $4,900— all of which was done in his official capacity as cashier, all the transactions being in his own handwriting.

This evidence was sufficient to make the confession admissible. It proves that a crime was committed.

Besides, it is a rule that full proof of the corpus delicti, independent of the confession of the defendant, is not required. If there is evidence of corroborating circumstances which tends to prove the crime and corresponds with circumstances related in his confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved. If a confession is made which enables the state to discover corroborating evidence of the particular crime confessed, the corroborating evidence need not be sufficient, independent of the confession, to establish complete proof that the crime is committed. State v. Skibiski, 150 S. W. 1038, 245 Mo. loc. cit. 463; State v. Knowles, 83 S. W. 1083, 185 Mo. loc. cit. 177; State v. Wooley, 115 S. W. 417, 215 Mo. loc. cit. 671, 672; L. R. A. 1916B, loc. cit. 848; State v. Britt, 213 S. W. 425, 278 Mo. loc. cit. 514.

It is claimed by appellant that there was a failure to prove the actual conversion of the money by him to his own use which was necessary in order to establish the crime of embezzlement under the statute. In the case of State v. Meininger, 268 S. W. 78, 306 Mo. loc. cit. 695, this court said:

"Appellant was guilty of embezzlement if he knowingly and with fraudulent intent turned over the bank's money to others without authority and without security to the bank, even though appellant himself received no benefit of any sort...