State v. Obuchon

• Citation: 159 Mo. 256,60 S.W. 85
• Parties: STATE v. OBUCHON.
• Decision Date: 18 December 1900
• Court: United States State Supreme Court of Missouri

60 S.W. 85

159 Mo. 256

STATE v. OBUCHON.

Supreme Court of Missouri, Division No. 2.

December 18, 1900.

EMBEZZLEMENT—INSTRUCTIONS—EVIDENCE.

1. On a prosecution for embezzlement, evidence that accused proposed to another that, if he would pay him a certain sum of money, he would buy ten times that amount of genuine money and deliver it to him within a certain time, and that the money was advanced, is sufficient to support an instruction authorizing a conviction if such sum of money was delivered to accused for the purchase of other money, and he failed to do so, but, with criminal intent, appropriated it to his own use.

2. On a prosecution for embezzlement, an instruction authorizing an acquittal if the money which accused was charged with appropriating was delivered to him as the purchase price of a larger sum of money, which accused agreed to deliver to the prosecutor at a future date, is proper, where there was evidence to warrant it, since, if the contract was one of sale, and not of agency, accused could not be convicted for embezzlement.

3. An instruction without evidence to warrant it is properly refused.

Appeal from circuit court, Perry county; H. C. Riley, Judge.

John Obuchon was convicted of embezzlement, and he appeals. Reversed.

John V. Noell, for appellant. The Attorney General and Sam B. Jeffries, for the State.

BURGESS, J.

At the adjourned October term, 1899, of the circuit court of Perry county defendant was convicted of the crime of embezzlement, under an indictment charging him with grand larceny, and his punishment fixed at two years' imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest, he appeals.

It appears that on the 15th day of November, 1897, the defendant went to Leo S. Maddock, and asked him if Eli McDowell had been to see him, and said that he had sent McDowell to see him, because McDowell was a good friend to him and could be trusted. Defendant then proposed to Maddock that, if he would pay him $80, he would buy with it for him 10 times that amount of genuine money, and deliver to him within 30 days thereafter. Maddock said that he did not want to put in the $80, and defendant said, "If you will furnish me $40 now, I will send that, and when you get the money you can pay me the other forty out of the money you get." It was finally agreed between them that Maddock should pay defendant $40 down, and $40 more when the money should come. Defendant said to Maddock, "You will get your return for this" in a certain time, and that he would take his word for the other. About two weeks later defendant sent a note to Maddock by Eli McDowell, in which he said, "I am in need of that money that you owe me;" and a few days thereafter Maddock paid him $5, and still later $35 more, being the balance of the $80. Defendant testified that the only money he ever received from Leo Maddock was $35, in payment for money that he had loaned him; that he did not send or agree to send for "green goods" for Leo Maddock, as stated by him, and never told him or anybody else that he could or would get them $10 for $1, nor that he could or would get them any sum of money or green goods whatever.

The only one of the state's instructions that is complained of is the first, which reads as follows: "If the jury find from the evidence in the cause, beyond a reasonable doubt, that at any time within three years prior to the 10th day of October, 1898, in the county of Perry and the ...