State v. Murray

• Citation: 609 S.W.2d 192
• Decision Date: 03 November 1980
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Robert N. MURRAY, Appellant. 31332.
• Court: Court of Appeal of Missouri (US)

Page 192

609 S.W.2d 192

STATE of Missouri, Respondent, v. Robert N. MURRAY, Appellant.

No. WD 31332.

Missouri Court of Appeals, Western District.

Nov. 3, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 2, 1980.

Karl L. Madden, Jr., Moberly, for appellant.

John Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P. J., SWOFFORD, J., and FLANIGAN, Special Judge.

PRITCHARD, Presiding Judge.

By the verdict of a jury, appellant was found guilty of eleven counts of felonious stealing. Upon being found to be a second offender, the court sentenced him to ten years imprisonment on each count in the Division of Corrections, the sentences to run concurrently.

Appellant's points are: (1) the trial court erred in failing to grant a new trial because the amended information failed to state an offense in that it did not state a specific time when the crime was committed (apparently this assignment refers to each of the eleven counts); (2) the evidence was insufficient to support the finding(s) of guilt; and (3) the court erred in permitting the amended information to be filed because it charged appellant with offense(s) which in particulars were significantly different than the original charge(s) in that the amended information did not state dollar amount(s) value(s) except to state over fifty dollars and the amended information significantly changed the time when appellant was alleged to have committed the act(s). (Parentheses of the plural added.)

The amended information is in eleven counts in identical language except for the names of individual victims and type of grain and alleges that appellant "between the dates of March 15, 1976, and November 16, 1976, did then and there, willfully, unlawfully, feloniously and intentionally, steal the personal property of another to-wit: many bushels of wheat of the value of more than fifty dollars ($50.00), the goods and personal property of __________, with the felonious intent to steal by exercising dominion over said personal property in a manner inconsistent with the rights of said owner, by using, transferring, and concealing possession of said personal property, * * * ."

Appellant began working for the Boss Feed and Fertilizer Company, a feed and grain warehouse in Moberly, Missouri, on March 15, 1976, as a collector of accounts receivable. He gradually assumed a managerial capacity with the warehouse when Dick Collins, owner of 99% of the company, because of personal problems spent much time away from it. Collins discharged appellant on November 15, 1976.

These eleven persons alleged to be victims testified as to deposits of grain in the Boss warehouse, and the values of the grain as follows: Otis Kesner deposited 235.67 bushels of wheat in July 1975. It was worth $2.37 per bushel (total $497.00, less storage); he was never paid for it; and gave no consent for it to be sold or moved. Roy Hannah deposited his 1975 crop of soybeans, 571 bushels worth $3,951.00, less storage, $171.49; his 1976 crop, 166 bushels of wheat worth $1,417.37, and 1976 soybeans worth $1,143.18. The total amount owed by Boss to Hannah was $6,340.30 for which he did not get paid, and he gave no consent to sell or move his grain. Glen Isringhausen stored 8,336 bushels of wheat with the Boss warehouse in 1976. It was worth $23,000 to $24,000 and he never got paid for it. Appellant told him that there was not as much wheat in storage as he had deposited. Alvin Wilkinson stored 431.67 bushels of wheat in 1975 or 1976, for which he was never paid, and which was worth a net of $806.01. Arthur Duffield deposited 1,039 bushels of soybeans in 1974, and 887 bushels of soybeans in 1975. Although it is not quite clear from Duffield's testimony, the net value of the 1974 soybeans was $5,876.31, and by computation, the 1975 crop at $6.92 per bushel would have had a gross value of $6,138.04. He gave no consent or permission to anyone at Boss to sell or move his soybeans. Merlin Riley, on July 7, 1976, deposited $1,294.25 worth of wheat at $2.37 or $2.39 per bushel, and although he requested, he received no money for it. Jerry Sumpter's 383.74 bushels of soybeans were deposited with Boss in 1976, for which he was never paid. In November of that year, he asked for his beans and was told by appellant that the beans were in a farm bin down by Clark, Missouri, and they would have to get a tractor and an augur to get them, and Sumpter told him he would be there with a truck. Apparently, this transaction was never accomplished. Ethel White deposited 808 bushels of soybeans with Boss in October, 1975, was offered $6.92 per bushel for them in January, 1977, but was not paid for them. Leonard Huss deposited 193.5 bushels of left-over seed wheat on November 12 and 13, 1976, priced at $448.11 in January, 1977, for which he was not paid. Glenwood Spurling stored soybeans at Boss' in 1974 and 1975, but got paid for the 1974 crop, 600 bushels. He did not get paid for 1183 bushels stored in 1975, worth $6,200, and he did not give permission to anyone to sell those beans. Elwyn Owings had a landlord's share of soybeans, 31.88 bushels stored on November 22, 1976 (after appellant's discharge), but he was not paid for 87.96 bushels of soybeans stored on November 5, 1976, worth $6.92 per bushel.

Larry Case had been a grain warehouse auditor for the Missouri Department of Agriculture since 1976. His duties were to determine how much storage (capacity) was contained in the elevator, how many accounts were owed to customers, and how much grain was in the facility, to be sure everything was in balance. Measurement of grain, although not exact, can be 1% tolerance. Wheat in a wheat bin from customers is commingled.

Case first audited Boss in December, 1976, with these results: As of December 1, 1976, there were obligations to customers for 10,232.34 bushels of wheat in storage and there were actually 824 bushels in the bins, a shortage of 9,408 bushels. Obligations for soybean storage were 4,994.79 bushels, and Case found 1,146 bushels there, which left a shortage of 3,849 bushels. There were also shortages of yellow corn, oats and grain sorghum. No shortages appeared on the October, 1976 audit. Boss had closed by February, 1977. During the week-long December audit, Case talked with appellant, there being three other department employees present at which time appellant "made a statement to the effect that he had tried both sides of the law and that he had apparently found it to be much more fun and much more profitable to be dishonest."

Lee Spangler worked at Boss. After appellant arrived, paychecks got shaky, and checks were made out, signed and handed back to appellant who would count out the cash for employees.

Dick Collins (owner of Boss) testified that he never sold grain except oats to Truesdel, and he sold one pick-up load of beans to M.F.A. None of these sales were for cash. Most grain was sold through the use of railroad grain cars. Collins never directed anybody to sell grain to raise needed cash (for payroll). Appellant got into a situation, without permission from Collins, but with his knowledge, of writing checks for business purposes, and Collins did not stop him.

Mike Dunbar worked at Boss. Appellant was the only person who directed him to take grain to Truesdel's, and told him to have the checks made out to "Bob Murray." Dunbar used his own truck most of the time in hauling grain to Truesdel's. Some checks were taken back to appellant and others "he told him just to go on and take to Sturgeon and cash them." He gave the cash to appellant when he cashed the checks, at which time appellant would either stick it in the drawer or in his pocket. Dunbar also hauled grain to M.F.A., got cash or checks made to him at first, and usually bought feed with all the cash at Central Soya. If there was money left over, Central Soya would put it on Boss' account. Sometimes, when Dunbar brought back cash, appellant would give him some of it to go to Central Soya to get some feed or something.

Gene Truesdel, president of Truesdel Brothers Grain, Clark, Missouri, knew Mike Dunbar who was employed by Boss in 1976, and he bought grain from him that year, which grain arrived by truck. Gene accepted the grain figuring that it came from Boss. He identified these Truesdel checks, received in evidence, and described as follows: 7-29-76, $787.00, payable to Bob Murray, for oats, endorsed "Bob Murray For Deposit Only Boss Feed and Fertilizer Co."; 8-3-76, $913.73, payable to Bob Murray, for beans, also endorsed "Bob Murray. For deposit only" Boss Feed Co.; 8-4-76, $266.98, payable to Bob Murray, for beans, endorsed "Bob Murray Mary Spangler" (Mary Spangler was an employee of Boss); 8-10-76, $1,553.17, payable to Bob Murray, for beans, and also endorsed "Bob Murray Mary Spangler"; 8-17-76, $752.98, payable to Bob Murray for beans, endorsed "Bob Murray c/o Robert G. Murray (Conduit)"; 8-25-76, $1,407.63, payable to Bob Murray, for beans, endorsed "Bob Murray Mike Dunbar"; 8-26-76, $814.53, payable to Bob Murray, for beans, endorsed "Bob Murray Mike Dunbar"; 9-1-76, $2,166.13, payable to Bob Murray, for wheat, endorsed "Bob Murray Mike Dunbar"; 9-3-76, $786.60, payable to Bob Murray, for wheat, endorsed "Bob Murray c/o Robert G. Murray (Conduit)"; 9-10-76, $706.66, payable to Bob Murray, for wheat, endorsed "Bob Murray Mike Dunbar"; 9-22-76, $906.00, payable to Bob Murray, for beans, endorsed "Bob Murray Mike Dunbar"; 9-24-76, $412.58, payable to Bob Murray, for beans, endorsed "Bob Murray" ...