State v. Newhart, KCD

• Decision Date: 03 May 1976
• Docket Number: No. KCD,KCD
• Citation: 539 S.W.2d 486
• Parties: STATE of Missouri, Respondent, v. John W. NEWHART, Appellant. 27677.
• Court: Missouri Court of Appeals

Page 486

539 S.W.2d 486

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

No. KCD 27677.

Missouri Court of Appeals, Kansas City District.

May 3, 1976.

Motion for Rehearing and/or Transfer Denied July 6, 1976.

Application to Transfer Denied Sept. 13, 1976.

Gary Eldredge, Lee M. Nation, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Neil MacFarlane, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SWOFFORD, Judge.

The appellant (defendant) was convicted of stealing more than Fifty Dollars, Section 560.156 RSMo 1969, and sentenced to five years imprisonment and placed on probation. He appeals from this judgment.

This is the second direct appeal of this matter to this court. A previous conviction of the defendant on the same charge was reversed and remanded because of a defective information and prejudicial error in the state's verdict directing instruction. State v. Newhart, 503 S.W.2d 62 (Mo.App.1973). Upon remand, the state filed an amended information and the case was retried with the result above noted.

The sufficiency of the evidence is once again challenged on this appeal as insufficient to support a finding of guilt, and this court is, therefore, held to the historical and well-defined limits as to the scope of permissible review. The evidence and reasonable inferences to be drawn therefrom must be considered in a light most favorable to the state, and all contrary evidence or inferences to be drawn therefrom must be disregarded. State v. Chase, 444 S.W.2d 398, 401(1) (Mo. banc 1969); State v. McClinton, 418 S.W.2d 55, 57(2) (Mo. banc 1967); State v. Jackson, 500 S.W.2d 306, 309(3) (Mo.App.1973); State v. Davis, 515 S.W.2d 773, 776(3) (Mo.App.1974).

The evidence in both trials was substantially the same in all significant details and the facts essential to the disposition of this appeal and within the confines of the rule above stated are as follows:

On October 27, 1970, Donald L. Tittsworth and his wife, Virginia L. Tittsworth, as sellers, entered into a real estate contract with A. E. Richardson, as buyer, for the sale of their 79-acre farm near Savannah, Missouri. This contract was prepared by the Tittsworths' lawyer, the defendant; was executed in his office at Savannah, Missouri and provided for a purchase price of $16,000.00. At the time of the execution of this agreement, Mr. Richardson delivered to the defendant his personal check for $1600.00, made payable to the defendant, as 'earnest money' on the contract.

Thereafter, Richardson's attorney examined the abstract of title and rendered a title opinion, and on December 30, 1970, Richardson delivered his check to the defendant in the amount of $14,400.00, representing the balance of the purchase price under the contract, and received a warranty deed to the property executed by the Tittsworths. The check was made payable to the Tittsworths.

On December 31, 1970, the Tittsworths went to the defendant's law office and endorsed the Richardson check for $14,400.00 in blank and received from the defendant his check for $7,975.40 payable to them and the First Community State Bank of Savannah (hereafter Community), which represented payment of their equity in the farm above the unpaid balance of a note secured by a deed of trust on the farm held by the Veterans Administration (hereafter VA). It was the oral agreement and understanding of the Tittsworths and the defendant that he would utilize the balance of the Richardson check to retire the outstanding VA loan 'right away'. This was also Richardson's understanding of how the matter would be handled with reference to the encumbrance on the farm.

When the defendant delivered his check to his clients on December 31, 1970, he asked them not to present it to Community for about an hour, in order to give him time to deposit the Richardson check in his account. They complied with this request and later that day deposited the defendant's check in Community to their own account. The defendant's check was drawn upon and the Richardson check deposited in the defendant's 'Special' or 'Escrow' account at Community. The record discloses that on the date of this transaction, the unpaid balance of the VA loan was slightly in excess of $8,000.00.

The demand ledger records of Community on the escrow account of the defendant disclosed the deposit therein of the $14,400.00 Richardson check on December 31, 1970, and that on the same day, checks were charged against the account in the amounts of $3600.00 (which had been presented on December 30, 1970, but not charged against the account because the then balance was insufficient to cover it), $900.00, $7,975.00 (obviously the Tittsworths' check),.$1000.00 and $450.00, and that the balance of the account at the close of business on December 31, 1970 was $631.31. On September 13, 1971, the account showed a zero balance and was 'closed out'. From the close of business December 31, 1970 to and including September 13, 1971, except on January 5, 1971, as hereafter discussed, there was never a sufficient balance in the account to cover a check for the amount necessary to retire the VA loan on the farm.

The defendant testified that because of an outstanding judgment against him, and to prevent successful garnishment, he maintained a minimal balance in the account. He stated that he had an arrangement with Community that checks written by him on this account in excess of the then balance would be treated as sight drafts by Community; he would be notified, and would pick up such checks over the counter with cash, which he kept in his office safe for this purpose. He was corroborated as to the so-called 'sight draft' arrangement by an employee of Community and he stated that he intended to handle the payment to the VA in this manner. It is interesting to note that the defendant put forth another theory of defense. He pointed out that at one time during the period here involved, the balance of the special or escrow account, into which the Richardson funds had been deposited, combined with a balance in another account of his law firm (not directly involved here) would have been sufficient to cover the checks which he claimed he had written in payment of the VA loan. While the evidence did show at one time the combined balances in both accounts slightly exceeded $8,000.00, this theory of defense would seem to be at war with his asserted fear of garnishment arising from the outstanding judgment and the practice of accumulating cash in his office safe.

In the latter part of January, 1971, the Tittsworths received a notice from VA of payment due on the loan, which they disregarded, thinking that the loan had in fact been paid by the defendant. They received a second notice in February and contacted the defendant. Notices were received in March and April, and the Tittsworths went to see the defendant at his office and he assured them he had sent a check to VA in payment of the loan. However, they continued receiving notices and were contacted by VA representatives, and in August, 1971, the VA wrote them threatening foreclosure of the deed of trust.

Mr. Richardson, the purchaser of the farm, testified that he first became aware that the VA loan had not been paid in April, 1971 and he thereupon contacted the defendant, who said he would 'take care of it'. In May, he again received a notice of nonpayment from the VA, again contacted the defendant, and was informed that a check in payment had been sent to VA but had been lost in the mails. Richardson testified that he received another notice from VA in August, advising him of its intention to foreclose; that on September 21, 1971, he received a check from the defendant for the amount owing on the loan; that he mailed this check to the VA by certified mail, return receipt requested; that he later received the return receipt showing delivery to VA; that later, he was contacted by VA and was advised that the check had not been received; and, that the VA official demanded hand delivery of a check in payment of the loan at its Kansas City office.

The evidence disclosed that thereafter in October, 1971, the defendant did hand deliver a cashier's check drawn on a Kansas City bank to the VA office in satisfaction of the debt on the day before foreclosure notice was to be published.

The records of Community showed two stop payment orders on the defendant's special account. The first of these was dated September 21, 1971, and stopped payment on a check dated February 23, 1971, payable to VA in the amount of $18,065.96. The other was dated October 27, 1971, and stopped payment on a check (date not shown) payable to VA in the amount of $8,338.18. The reason stated in both of these stop payment orders was that the checks were 'lost'. It is noted that neither of the checks was ever presented to Community for payment, and that as of the dates of the stop payment orders, the defendant's special account had a zero balance.

Further, both Mr. and Mrs. Tittsworth directly and positively testified that they had never authorized the defendant to do nor consented to his doing anything with the balance of the purchase price of their farm other than pay their VA note and satisfy the encumbrance on the property. Mrs. Tittsworth stated it was her understanding that the defendant would do this 'right away' after the sale was closed on December 31, 1970. Mr. Richardson testified that he did not authorize the defendant to use the money for anything other than the payment of the VA loan.

Further facts disclosed by the record will be hereafter noted as pertinent to specific points raised in this appeal.

On this appeal, the defendant urges three points or assignments of error. Although divided into several subsections, his first point deals with the sufficiency of the evidence to support his conviction. In support of his position, he states that the...