State v. Noland

• Citation: 19 S.W. 715,111 Mo. 473
• Parties: The State v. Noland, Appellant
• Decision Date: 20 September 1892
• Court: Missouri Supreme Court

19 S.W. 715

111 Mo. 473

The State v. Noland, Appellant

Supreme Court of Missouri, Second Division

September 20, 1892

Appeal from Cole Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

Charles T. Noland, W. S. Pope and Charles P. Johnson for appellant.

The indictment should have been quashed: First. Because it was drawn under section 3555, Revised Statutes, 1889, when it should have been drawn under the special treasury law. Revised Statutes, 1889, ch. 164. The special law repealed the general law in regard to embezzlement by public officers, in so far as it applied to the state treasury. State v Green, 87 Mo. 585; State v. Bittinger, 55 Mo 596; State v. Debar, 58 Mo. 395; State v Clark, 54 Mo. 17; State v. Newton, 26 Ohio St 265; State v. Wells, 112 Ind. 237; State v Mason, 108 Ind. 48; State v. Denton, 22 Mo.App. 305; Wood v. State, 47 Ark. 488; 1 Bishop on Criminal Procedure [2 Ed.] sec. 598; 1 Wharton on Criminal Law, sec. 371. Second. Because it alleged that defendant was state treasurer and failed to allege that he had ceased to be. There could be no embezzlement until he ceased to be treasurer and failed to pay over to his successor the money due the state. Until there was some one authorized to receive it for the state, there could be no unlawful withholding or depriving the state of it. Revised Statutes, 1889, secs. 8613, 8628, 8633, 8635; State v. Rubey, 77 Mo. 610; State v. Hebel, 72 Ind. 361; Com. v. Lewis, 12 S.W. 266; Brandt v. State, 41 Iowa 593; Vance v. State, 35 Ark. 176; Chaplin v. Lee, 25 N.W. 609. Third. Because it should have described the money as "lawful money of the United States." If it was lawful money of the United States, no further description was necessary. State v. Carro, 26 La. Ann. 377. It need not have described the denomination of the bills, nor whether it was legal tender or national bank notes or coin, for section 4111 covers that. But there must be some allegation that the money was lawful money of the United States in order for section 4111 to apply; for, with the exception named in this section, all money must be specifically described under the common law and the repeated decisions of this and other states. Reside v. State, 10 Tex.App. 675; People v. Cohn, 8 Cal. 42; State v. Kroeger, 47 Mo. 530; State v. Moore, 66 Mo. 372 (overruling State v. Kroeger, supra, in part, but not in the point here raised); 2 Bishop on Criminal Procedure, sec. 703; State v. Denton, 22 A. 305; Stewart v. State, 62 Md. 413; Kearney v. State, 48 Md. 23; Ridgeway v. State, 41 Tex. 231; Merwin v. People, 26 Mich. 298; Smith v. State, 33 Ind. 159; Wharton on Criminal Pleading & Practice, sec. 218, notes in 51 Am. Dec. 232, 233, 234, 235. Fourth. Because it failed to allege the intent with which defendant converted the money to his own use. An evil intent is a necessary element of the crime of embezzlement. State v. Reilley, 4 Mo.App. 392; State v. Pratt, 98 Mo. 482; State v. Jennings, 98 Mo. 495; State v. Simpson, 73 N.C. 269. Fifth. The first clause, section 3555, Revised Statutes, 1889, "converting to his own use," describes the elements of an ordinary embezzlement. State v. Flint, 62 Mo. 393; State v. Clarkson, 59 Mo. 149. Sixth. "In statutory offenses there must be an evil intent, though the statute is silent on the subject." 1 Bishop on Criminal Law [7 Ed.] sec. 345; Bishop on Statutory Crimes [2 Ed.] secs. 132, 432a; 1 Bishop on Criminal Procedure, sec. 538, and citations, and secs. 623-630, and notes; Gabe v. State, 1 Eng. 519. Seventh. An indictment must not only follow the words of the statute, but it must follow the construction of the statute, and every element of the offense which a construction shows to be necessary to constitute the offense must be alleged with sufficient clearness to apprise a defendant of the nature and cause of the accusation against him. 1 Bishop on Criminal Procedure, secs. 626-628; State v. Hebel, 72 Ind. 361. Eighth. It will not do to simply follow the exact words of a statute in all cases in drawing indictments. Where a statute uses the word "wilful," the indictment must charge the acts to have been done "knowingly" and "corruptly." State v. Pinger, 57 Mo. 242; State v. Hein, 50 Mo. 362; State v. Gardner, 2 Mo. 23. The word "embezzle" has a well-known legal meaning. The legislature used it in that sense. And the words "so embezzle," at the end of section 3555, refer to the description of the offense in the lines above, and show that the offense of "converting to his own use" is embezzlement. The wording of section 3549, "embezzlement by an agent or servant," is the same in its concluding lines. The cases of State v. Reilley, State v. Pratt, supra, together with a host of authorities cited herein, establish the law to be that an intent to deprive the owner of his property is a necessary and essential element of the offense of embezzlement, and should be charged in the indictment. Ridgeway v. State, 41 Tex. 231; State v. McCollum, 44 Mo. 343; 4 American & English Encyclopedia of Law, 746; Huntsman v. State, 12 Tex.App. 619; dissenting opinion of Judge Thomas in State v. Harmon, 18 S.W. 134; People v. Hurst, 62 Mich. 276; Guest v. State, 24 Tex.App. 235; State v. Schermer, 55 Mo. 83. (2) When the court sustained defendant's application for a change of venue, it had no power to permit defendant to withdraw said application until it first set aside its own judgment that the defendant could not have a fair trial on account of the prejudice against defendant in the minds of the inhabitants of Cole county. Until that judgment was set aside, the court had divested itself of all jurisdiction except to name the county to which the cause would be sent for trial. State v. Gleason, 88 Mo. 582; State v. Schaffer, 36 Mo.App. 589; In Matter of Est. of Whitson, 89 Mo. 58; State v. Shaw, 43 Ohio St. 324; State v. Daniels, 66 Mo. 207; State v. Gabriel, 88 Mo. 631; State v. Thomas, 32 Mo.App. 159; State v. Shipman, 93 Mo. 157; Goodhue v. People, 94 Ill. 47. The case should be reversed and remanded, and the change of venue be completed by sending the cause to another county, or the order sustaining the application set aside. The withdrawal of the application by defendant on the illegal grant of permission for him to do so by the court does not restore jurisdiction to the Cole county circuit court. State v. Hayes, 88 Mo. 344. The question of jurisdiction is always open. State v. Lawrence, 45 Mo. 492. (3) When Judge Edwards, on January 7, sustained the affidavit of prejudice of himself against defendant, it was his duty to order an election by the bar, or to reset the cause and call in some other circuit judge to try the case. He set the cause for trial on April 20, and notified Judge Burgess, and Judge Burgess accepted. This ended Judge Edwards' jurisdiction, except upon the contingency of Judge Burgess not appearing; then it would be his duty to again reset the cause, and call in some other circuit judge. On April 20, Judge Burgess did not appear, and Judge Edwards adjourned court until May 4. Judge Burgess was not again called on by Judge Edwards, nor was the case reset. Therefore, the cause became continued to the next term by operation of law, and Judge Burgess had no jurisdiction to try the case on May 4, nor in July, and all proceedings had before him were coram non judice. Stoval v. Emerson, 20 Mo.App. 322; Lacy v. Barrett, 75 Mo. 469; State v. Shea, 95 Mo. 85; State v. Shaeffer, 36 Mo.App. 590. (4) The demurrer to the evidence should have been sustained. There was no proof as to the use of the money by defendant. The language of the statute is "convert to his own use;" it does not attempt to punish a simple conversion. (5) It was competent to show a settlement had been made and all the money due was in the treasury. The report of the legislative committee should have been admitted in evidence. State ex rel. v. Hixon, 41 Mo. 210; State v. Leonard, 6 Cald. 307; Revised Statutes, 1889, secs. 8635-7. (6) The "Wilson" check ought not to have been admitted in evidence. It had no seal of the treasurer's office on it as required by the statute. (7) The court erred in giving instructions for the state. They wholly omit the element of "animus furandi." The jury should have been specifically charged on the question of defendant's real intent. State v. Flint, 62 Mo. 393; State v. Clarkson, 59 Mo. 149; People v. Hurst, 62 Mich. 276; Sackett's Instructions to Juries, 555; Stallings v. State, 15 S.W. 716; State v. Meyer, 23 Weekly Law Bul. 251; People v. Converse, 74 Mich. 478; State v. Ware, 62 Mo. 597; State v. Schermer, 55 Mo. 83. (8) The verdict is insufficient to sustain the conviction because the indictment contains three counts, and it is a general one. State v. Harmon, 18 S.W. 134; 2 Bishop on Criminal Procedure [3 Ed.] sec. 595; Wharton on Criminal Pleading & Practice [8 Ed.] sec. 752; 2 Thompson on Trials, sec. 2640; Com. v. Carey, 103 Mass. 214; State v. Johnson, 75 N.C. 123. A general verdict is good where there are several counts describing the same transaction, so as to meet the proof at the trial, if any one of the counts is sufficient to sustain a judgment. State v. Pitts, 58 Mo. 556. (9) The court erred in refusing instructions asked by defendant. There is nothing in the evidence to show the offense was committed in Cole county. State v. Schaeffer, 89 Mo. 271; State v. Hatch, 91 Mo. 568. (10) The trial court erred in refusing to strike out the affidavits in opposition to a new trial taken before W. S. Davison, the prosecuting attorney. Collins v. Stewart, 16 Neb. 52; 1 Tidd's Practice, 494; Wilhouke v. Halle, 37 Ga. 678; Den v. Geiger, 9 N.J.L. 225; Dale v. Moore, 51 Mo. 589; Stevens v. Miller, 46 Mo. 404; Smith v. Ponath, 17 Mo.App. 262; Williams v. Rawlins, 33 Ga. 121; Hammond v....