State v. Myers

• Decision Date: 31 October 1884
• Citation: 82 Mo. 558
• Parties: THE STATE v. MYERS, Appellant.
• Court: Missouri Supreme Court

82 Mo. 558

THE STATE

v.MYERS, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jasper Circuit Court.--HON. M. G. MCGREGOR, Judge.

AFFIRMED.

A. L. Thomas for appellant.

D. H. McIntyre, Attorney General, for the State.

Evidence of other like attempts was admissible to show the intent with which the act was done. Wharton Crim. Ev., (8 Ed.) § 31, et seq.; 3 Greenleaf Ev., (14 Ed.) § 15. Such evidence has been admitted in like cases. Comm. v. Coe., 115 Mass. 481; 1 Cen. Law Jour. 481; Comm. v. Stone, 4 Met. 43; Bainbridge v. State, 30 Ohio St. 264; Gassenheimer v. State, 52 Ala. 313. The clerk had a special property in the money. Larceny could have been committed of it in his hands, and so could the offense charged. 1 Wharton Crim. Law, (8 Ed.) §§ 932a, 938; Comm. v. Butts, 124 Mass. 449; State v. Nelson, 11 Nev. 334.

PHILIPS, C.

The defendant was indicted under section 1561, Revised Statutes 1879, for an attempt by trick and fraud, to obtain from one P. K. Beard, the sum of $1, the property of said Beard. He was found guilty and sentenced to a term of two years in the penitentiary. From that judgment he prosecutes this appeal.

1. At the conclusion of the State's evidence the defendant demurred thereto. The ground of this objection is, that the proof failed to show that said Beard was the owner of the money in question. The evidence was, that Beard was a clerk in the store of Miller and Graves. He was employed by the month. He stated on the trial that the money did not belong to him, but to said Miller and Graves. In their absence he had charge of the money. Whether they were absent from the store at the time of the alleged attempt by defendant does not appear from the evidence.

To constitute a good indictment for larceny at common law the thing stolen must be charged to be the property of the actual owner, or of a person having a special property as bailee, and from whose possession it was stolen. 2 Arch. C. P. 257. Chitty states the rule thus: “It is a clear maxim of the common law, that where one has only the bare charge or custody of the goods of another, the legal possession remains in the owner, and the party may be guilty of trespass and larceny in fraudulently converting the same to his own use. Thus, a butler may commit larceny of plate in his custody, or a shepherd of sheep. The same of a servant intrusted to sell goods in a shop. This rule appears to hold universally in the case of servants, whose possession of their master's goods by their delivery or permission is the possession of the master himself.” While the servant may have the charge he has not the possession of the master's goods; this for the legal reason that the possession of the servant is that of the master. And, therefore, it is well understood and established that the servant may commit larceny by converting to his own use the property entrusted to him. 2 East P. C. 564, 652, 653, 682. In People v. Call, 1 Denio 120, the court after announcing the foregoing doctrine, says: “This principle applies to servants, strictly so called, as it also does to apprentices, clerks and workmen of every description, who are employed in the care and management of the owner's property under his immediate supervision and control. See 1 Whart. Cr. L. (8 Ed.) 939. In Regina v. Green, 37 Eng. L. & Eq. 597, the prisoner was indicted for stealing two pairs of boots alleged as the property of Rowland Britton. The evidence showed that Rowland was the son of John Britton, the owner of the shop from which the boots were taken by the prisoner. Rowland staid in his father's shop as clerk without hire. In the temporary absence of the father, the son being left in charge of the shop, the goods were taken. On the disclosure of these facts at the trial the crown entered a nolle, and at once re-indicted the prisoner for stealing the goods of John Britton. The prisoner to this indictment entered a plea of autrefois acquit, based on the former proceeding. On argument before the full bench, the plea was held bad, on the ground that the boy was not a bailee, but a mere servant. The court said: “The goods remained all the time in the father's possession, and could not have been laid as the property of the son.” To the same purport are the cases of Rex v. Hutchinson, et al., Brit. Cr. Cases 412 and Heygood v. State, 59 Ala. 49. In the last named case, property in the corn stolen was alleged to be in the superintendent of the plantation, the owner being absent. The court held the superintendent to be the mere servant of the owner of the premises, and discharged the prisoner. “A servant,” the court say, “is one who is engaged, not merely in doing work or services for another, but who is in his service, usually upon or about the premises or property of his employer, and subject to his direction and control therein, and who is, generally, liable to be dismissed.”

Beard was in the strictest sense a servant, the mere clerk of Miller and Graves. He had not the possession of the money in question any more than any article or piece of goods then in the store. Had the prisoner carried off any goods on the counter or shelf, this clerk could not have maintained trespass, trover or replevin therefor. He was not a bailee. The cases to which we have been referred by the State's attorney on examination, are found to range themselves under the head of trustees or special bailees, such as carriers, coach drivers, charged with the duty of transporting and delivering the goods entrusted to them; or cases like that of tailors or shoemakers, to whom goods are delivered to be manufactured for wear. They had a special property interest in them. State v. Nelson, 11 Nev. 334. The case of Comm. v. Butts, 124 Mass. 449, cited by the State, differs materially from the case at bar. The decision of the court is placed on the ground that the property stolen had “been entrusted to the cashier to be conveyed to the bank; he had a special property in them” (the notes stolen). Besides there was a special statute of the State validating the indictment (Genl. Stat. 1860, Ch. 172, § 12). This statute was enacted presumably, because the previous decisions of the Surpeme Court of the State, based on common law rules, held a different way.

The section of the statute under which the indictment, under consideration was drawn in the form prescribed, required the name of the owner of the property to be inserted. This variance would invalidate the conviction had in this case but for another section of the statute. R. S. 1879, § 1820. “Whenever, on the trial of any felony or misdemeanor, there shall appear to be any variance * * in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had, shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.” Under this section, while the variance in question is matter of suggestion and defense for the prisoner, it is for the trial court to determine whether it is material to the merits of the case, and prejudicial to the properdefence of the prisoner. If it appears to the trial judge that the defense has probably been misled by the allegation of ownership of property to his prejudice, it would be the plain duty of the court to give him the benefit of such variance and direct an acquittal. It is to be presumed from the action of the trial court in refusing defendant's demurrer to the evidence, that in the judgment of the court the variance was immaterial, or not prejudicial to the defense. On the facts of record we are not disposed to review the discretion of the trial judge. State v. Wammack, 70 Mo. 410; State v. Barker, 64 Mo. 283.

II. The action of the trial court in admitting certain evidence is assigned for error. To properly understand this issue it is important to explain the nature of the “trick” by which the defendant is charged to have attempted to obtain money from Beard. Beard's testimony was, that the defendant came into the store and asked for a nickel's worth of tobacco. It was handed to him, and in payment he handed Beard a two dollar bill. Beard returned him a silver dollar and ninety-five cents in change. Defendant dropped the dollar in silver in his pocket, and said he had found a nickel; and laying it on the counter with the ninety-five cents, said he would rather have a dollar piece for it. Thereupon Beard took from the drawer a silver dollar and laid it down. Whereat the defendant remarked that he believed he would rather have the two dollar bill than the silver, and requested Beard to give it to him and take the two dollars in silver on the counter. Whereat Beard reminded him that he had put the dollar in his pocket, and to hand him that. The prisoner then took up his dollar in change and walked out. The prosecuting attorney then introduced other witnesses, by whom he proved, against the objection of defendant, that on the same day near the same time, both before and after the act in question, in the same village, the defendant attempted the same trick on other clerks, and was heard to say to his companion that he had “knocked them down for a one”--alluding to a house which he had just left; and further stated that “my partner has done the town for $10, and we are getting drunk on the money or over it.” The prosecuting attorney stated at the time, that this evidence was introduced for the purpose of showing the intent with which the act under investigation was done.

As this presents an important question in the administration of criminal law, about which there is some contrariety of opinion, I have given it much consideration and investigation. It is a general rule that a distinct crime, for which the party might be separately proceeded against, cannot be given in evidence against the prisoner on trial for a single offense. It rests upon the equitable and...