State v. Nelson
| Decision Date | 11 June 1951 |
| Docket Number | No. 2,No. 42486,42486,2 |
| Parties | STATE v. NELSON |
| Court | Missouri Supreme Court |
Lawson, Hale & Coleberd, Francis G. Hale, and Artur R. Kincaid, all of Liberty, for appellant.
J. E. Taylor, Atty. Gen., Frank W. Hayes, Asst. Atty. Gen., for respondent.
In the circuit court of Clay County the appellant was convicted of embezzlement and his punishment was assessed at imprisonment in the penitentiary for a period of two years. From that sentence he has duly appealed.
On April 12, 1949, the grand jury returned an indictment charging that on or about November 14, 1947, the appellant embezzled $3,000 of the funds of William C. Chapman and Margaret B. Chapman, his wife.
For several years prior to the date of the alleged embezzlement the appellant was a real estate broker at North Kansas City. On November 14, 1947, the appellant, as agent for Chapman and his wife, sold their real estate to Dorus D. Patton and Evelyn J. Patton, his wife. This sale was made by a written contract signed by Chapman and his wife as sellers and Patton and his wife as purchasers. This contract provided that $3,000 of the purchase price was to be paid to appellant by the purchasers, to be held by him in escrow pending compliance by the parties with the terms of the contract. The contract provided that 'this contract is made subject to the buyer being able to secure satisfactory financing for the amount of $8,000.00,' which was the balance of the purchase price to be paid when the deal was closed. Another provision was that the sellers were to have sixty days thereafter to furnish abstract of title, and that the buyers should have thirty days thereafter within which to examine it. If defects were found they were to be corrected by the sellers within thirty days after delivery of written objection thereto, and if not corrected the contract should be null and void and 'the money deposited as aforesaid shall be returned to the buyer and the abstract returned to the seller.'
The appellant deposited the check for $3,000 on November 15, 1947, to his personal account in the Bank of North Kansas City from which he paid his bills and expenses. The testimony presented by the State shows that at some indefinite time appellant was unable to produce the $3,000 escrow deposit. The indictment alleges and the evidence tends to show that the embezzlement occurred on or about November 14, 1947, while the deal between the sellers and the buyers was not closed until about February 1948.
Appellant contends that the court erred in overruling his motion for a directed verdict for the reason that the indictment specifically charged the appellant with embezzlement of money belonging to Chapman and his wife, the sellers of the property, while all of the evidence affirmatively shows that if the money was embezzled by appellant it was done before the deal was closed and, therefore, belonged to the buyers, Patton and his wife.
In other words, it is the contention that at the time the embezzlement took place the money legally belonged to the buyers, Patton and his wife, and could not become the property of the sellers Chapman and his wife, until the deal was closed.
29 C.J.S., Embezzlement, Sec. 31, pages 712-713.
In the case of Meacham v. State, 45 Fla. 71, 33 So. 983, loc. cit. 984, the Florida Supreme Court, in dealing with the ownership of the property embezzled, said: ...
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