State v. Newhart

• Decision Date: 03 December 1973
• Docket Number: No. KCD,KCD
• Citation: 503 S.W.2d 62
• Parties: STATE of Missouri, Respondent, v. John W. NEWHART, Appellant. 26348.
• Court: Missouri Court of Appeals

Page 62

503 S.W.2d 62

STATE of Missouri, Respondent, v. John W. NEWHART, Appellant.

No. KCD 26348.

Missouri Court of Appeals, Kansas City District.

Dec. 3, 1973.

J. Arnot Hill, Hill & McMullin, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Before DIXON, C.J., and PRITCHARD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

A jury of defendant's peers returned a verdict finding him guilty of stealing more than Fifty Dollars (Section 560.156 RSMo 1969, V.A.M.S.), but were unable to agree on his punishment. Allocution was granted, judgment was entered, defendant was sentenced by the court to three years in the Missouri Department of Corrections (Section 560.161 RSMo 1969, V.A.M.S.) and probation was denied. Defendant appeals from the judgment and sentence entered.

Defendant levels seven charges of error on appeal. Paraphrased, they are: ONE, the information upon which defendant was put to trial was fatally defective in that it charged several different acts in the disjunctive; TWO, the information was fatally defective in that it did not charge defendant with stealing without the consent of the owner or by deceit, thereby failing to furnish a sufficient description of the offense to enable defendant to make his defense, to avail defendant of a conviction or acquittal for protection against further prosecution for the same offense, and to sufficiently inform the court of the charge in order that it might determine whether the evidence was sufficient as a matter of law to support a conviction; THREE, the trial court erred in failing to permit defendant to testify he had no intent to steal the property in question; FOUR, the state's verdict directing instruction (Instruction No. 3) was prejudicially erroneous in that it directed the jury to find defendant guilty if he 'did steal, or use, or transfer' the property in question without requiring the jury to find that 'use' or 'transfer' constituted a criminal offense and, additionally, was prejudicially erroneous in that it did not submit essential elements of the charged offense; FIVE, the court erred in giving Instruction No. 4 because it constituted a comment on the evidence by the court and was unsupported by the evidence; SIX, the court erred in refusing to give Instruction No. 10, requested by defendant, since it was a correct statement of law as to the issue of criminal intent and the jury was not otherwise instructed on that issue; SEVEN, the court erred in overruling defendant's motion for judgment of acquittal at the close of all the evidence because the evidence favorable to the verdict was not sufficient to susutain a conviction as a matter of law.

The facts deemed essential to disposition of the appeal unfold as follows: On October 27, 1970, at defendant's office in Savannah, Missouri, a real estate contract reciting $16,000.00 as the total purchase price was entered into between Donald L. Tittsworth and Virginia L. Tittsworth as sellers and A. E. Richardson as purchaser. Purchaser delivered to defendant his personal check in the amount of $1,600.00, made payable to defendant, representing the 'earnest money' payment on the contract.'

On December 30, 1970, purchaser left his check, in the amount of $14,400.00, made payable to the sellers, at defendant's office, same representing the balance of the purchase price, and received a warranty deed that had been executed by sellers. On December 31, 1970, sellers appeared at defendant's office and endorsed in blank the purchaser's $14,400.00 check, and then delivered the endorsed check to defendant. Contemporaneously, defendant delivered to the sellers a check in the amount of $7,975.40, drawn upon an 'escrow account' carried by defendant in the First Community State Bank, savannah, Missouri. The $7,975.40 check represented the total purchase price due sellers under the real estate contract, less $8,024.60 which was the amount needed to pay and satisfy the unpaid principal and accrued interest of a note held by the Veterans Administration, which was secured by a deed of trust on the real property conveyed by the sellers to the purchaser. It was understood by the sellers and the purchaser, and by defendant, that defendant would pay and satisfy the note held by the Veterans Administration from that portion of the total purchase price retained by defendant. The defendant deposited purchaser's $14,400.00 check to the referred to 'escrow account' in the First Community State Bank on December 31, 1970. Sellers, on December 31, 1970, presented their $7,975.40 check to and received payment from the First Community State Bank.

Bank records disclosed checks in the amounts of $3,600.00, $900.00, $7,975.40, $1,000.00 and $450.00 charged against defendant's 'escrow account' on December 31, 1970, and that the balance of defendant's 'escrow account' at the close of business on December 31, 1970, was $631.31. Bank records further disclosed that from the close of business on December 31, 1970, to and including September 13, 1971, when defendant's 'escrow account' was closed, there was never a sufficient balance in defendant's 'escrow account' to cover a check for the amount required to pay and satisfy the unpaid principal and accrued interest of the note held by the Veterans Administration.

In April, 1971, the purchaser received a notice from the Veterans Administration advising him that the note was unpaid. The purchaser advised defendant of the notice and was told by defendant that a check had been mailed to the Veterans Administration on February 23, 1971, in full payment of the note, but a release had not yet been received. Approximately thirty days later, the purchaser received a similar notice from the Veterans Administration and again contacted defendant. The purchaser testified defendant advised him on the second occasion that he was going to stop payment on the referred to February 23, 1971, check and issue another check and send it to the Veterans Administration. The purchaser received a third similar notice, which he advised the defendant of, and was again told by defendant that the loan would be taken care of. Sometime during September, 1971, the purchaser was advised by the Veterans Administration that foreclosure proceedings were going to be instituted. The purchaser conveyed this latter information to defendant and told defendant that if the note was not paid, he, the purchaser, was going to do something about it. On this occasion defendant gave the purchaser a check dated September 21, 1971, drawn on defendant's 'escrow account', payable to the Veterans Administration, to pay the loan. The purchaser mailed this check to the Veterans Administration, but it was lost by the Veterans Administration. The note held by the Veterans Administration was finally paid on October 28, 1971, by means of a cashier's check obtained and delivered by defendant to the Veterans Administration's office in Kansas City, Missouri.

The First Community State Bank received a stop payment order from defendant on September 21, 1971, as to the check which defendant said was dated February 23, 1971, and mailed to the Veterans Administration and another stop payment order on October 27, 1971, as to the check dated September 21, 1971, payable to the Veterans Administration.

Defendant testified that he did not 'get around' to sending a check to the Veterans Administration in payment of the note until February 23, 1971. The referred to February 23, 1971, check, according to defendant, was drawn on defendant's 'escrow account' at the First Community State Bank, Savannah, Missouri. Further, the February 23, 1971, check, according to defendant, was never presented for payment to the First Community State Bank. Defendant testified he made several inquiries of the Veterans Administration concerning why the February 23, 1971, check was never presented for payment.

Defendant further testified that during the period in question, he deliberately kept a minimal balance in his 'escrow account' at the First Community State Bank, since there were outstanding judgments against him which might give rise to garnishments. Additionally, defendant testified that he kept sufficient cash in his office safe to cover any outstanding checks drawn on his 'escrow account' and when checks drawn on the 'escrow account' were presented for payment, the First Community State Bank would treat them as sight drafts and he would pick them up over the counter by the payment of cash. With reference to the February 23, 1971, check, which defendant testified he drew and mailed to the Veterans Administration, he testified that when it was presented for payment at the First Community State Bank, he was going to pick it up by the payment of cash. An officer of the First Community State Bank testified that during the period in question checks drawn on defendant's 'escrow account', when presented for payment, were treated as sight drafts and defendant would be notified and he would pick up such checks, over the counter, by payment of cash.

Points ONE and TWO leveled by defendant lend themselves to joint treatment and disposition. Preliminarily, Sections 560.156 and 560.161, RSMo 1969 compel close judicial scrutiny because of an aura of confusion on the part of the bar in applying them to varying factual situations. This aura of confusion appears to emanate from a failure to perceive the basic and fundamental changes effected by the initial passage of five new sections relating to stealing and kindred offenses in 1955 by the General Assembly (now known as Sections 560.156 and 560.161, RSMo 1969, V.A.M.S.) A.M.S.), the underlying philosophy that brought about the changes and an aversion to believe that the basic and fundamental language employed to effect the changes means what it says. The basic and fundamental changes effective find clarity of expression in State v. Zammar, 305...