State v. Pate

Decision Date05 July 1916
Docket NumberNo. 19270.,19270.
Citation188 S.W. 139,268 Mo. 431
PartiesSTATE v. PATE.
CourtMissouri Supreme Court

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

E. T. Pate was convicted of embezzlement and appeals. Reversed and remanded.

After due preliminary proceedings the prosecuting attorney of Shannon county filed in the circuit court of that county his duly verified information, consisting of 15 counts, and charging the defendant in certain counts thereof with embezzlement from the Bank of Birch Tree, and in others with falsifying the records of said bank with intent to defraud. The counts as to the falsification of the records were dismissed, and defendant was tried on those charging embezzlement. He was convicted on the third count, which charged the embezzlement of $600 on the 19th day of June, 1911, and his punishment was fixed at imprisonment in the penitentiary for a term of two years. Because of the numerous counts the evidence extends over rather broad fields, and on the part of the state discloses that during the years 1911-12, defendant was cashier of the Birch Tree State Bank, which was organized some time in the year 1905. On August 28, 1913, the state bank examiner, in the course of his duties, made an examination of the bank, which disclosed irregularities and discrepancies and a financial impairment of $14,000. This shortage, or at least a portion thereof, had been covered up and concealed by means of false entries, which defendant admitted he had made upon the books of the bank. This was done by failing to credit to the account of the depositor the correct amount which he deposited, the same being transferred and credited upon the books to the account of the defendant. In some instances no record was made of the deposit, but the money was directly appropriated by the defendant to his own use. In numerous cases the books disclosed that certain patrons and depositors of the bank were overdrawn in their accounts, when in truth and fact the bank was indebted to them, and, instead of the books disclosing a shortage in their account, they should have shown a credit, ranging in various sums. For instance, and according to the admissions of the defendant, the sum of $465.45 had been "switched" from the account of Andrew Asp to the account of the defendant; the account of the Birch Tree School District showed an over-draft of $54.51, and defendant admitted that he had taken $600 from this account; the bank's records disclosed an overdraft of Robert Boram in the sum of $724.12, and defendant admitted that he himself was responsible for $380 of the alleged overdraft; from the account of W. N. Bradford, Pate had transferred to his own account $485.49; and from the account of Mary E. Stewart the sum of $600. These are but instances of the course and system of the defendant, and are sufficient for the purposes of this review. Upon being confronted with the disclosures which the official examination made, the defendant at first insisted that the bank examiner was mistaken, and that the discrepancies and differences appearing between the entries on the books and the true facts could be consistently explained. Later, however, he admitted substantially that the books were incorrect, and that he had transferred to his own account and had used the money of the various persons who had made deposits with the bank, and, further, that if allowed time, he would pay to the bank the amount of his shortage. On the part of the defendant, the evidence tended to show that he bore a good reputation in the community in which he then lived and had lived at former times. He himself testified and denied that he had ever converted to his own use any of the money belonging to the bank. Such other facts as are deemed important will be referred to in the opinion.

L. B. Shuck, of Webb City, and Sebree & Orr, of Springfield, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

REVELLE, J. (after stating the facts as above).

I. The assignment first invoking our attention is that instruction No. 2 is erroneous, in that it does not require the jury to find that defendant feloniously or fraudulently converted the money without the assent of the owner. The instruction, omitting parts immaterial here, reads:

"And while acting as such cashier did then and there unlawfully convert to his own use any of such money belonging to such bank in any sum to the amount of $30 or more without the assent of such bank, then you shall find defendant guilty," etc.

It will be noticed that the instruction does not use the term "embezzle," nor does it require that the act of conversion be felonious or fraudulent, or be done with a felonious or otherwise fraudulent intent. Since the statute upon which the indictment is predicated does not couple with the prohibited act any specific intent, but makes the commission of the act itself the offense (State v. Lentz, 184 Mo. 223, 83 S. W. 970; State v. Larew, 191 Mo. 198, 89 S. W. 1031), it was unnecessary that the instruction purporting to cover the offense specifically mention the element of intent, provided, its terms were otherwise sufficient to include, in a general way, all the elements essential to a commission of the act forbidden. We do not mean by this that a felonious or otherwise fraudulent intent is not a necessary element of the offense, but that in the general instruction it need not be specifically mentioned, provided the instruction properly covers the prohibited act itself, but to do this, that is, to cover the offense of criminal conversion, such terms must be used as will include the element of criminal intent, and forbid a conviction in its absence.

The instruction under consideration merely requires the jury to find that the defendant unlawfully converted the property without the assent of the owner. The term "convert" does not imply any criminal intent. It is defined in Black's Law Dictionary, p. 267, as follows:

"An unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights."

It is said that every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of authority conferred, in case a limited authority has been given, with intent to so apply and dispose of it as to alter the condition or interfere with the owner's dominion, is a conversion. Laverty v. Snethen, 68 N. Y. 524, 23 Am. Rep. 184; Field v. Sibley, 74 App. Div. 81, 77 N. Y. Supp. 252; Watt v. Potter, 29 Fed. Cas. 438, Fed. Cas. No. 17,291; Railroad v. Lawson, 88 Ky. 496, 11 S. W. 511; Abrahams v. Southwestern R. Bank, 1 S. C. 441, 7 Am. Rep. 33. A wrongful intent is not an essential element of a conversion. It is enough that the rightful owner has been deprived of his property by some unauthorized act by another assuming dominion or control over it. Klein v. Cohen, 142 App. Div. 500, 127 N. Y. Supp. loc. cit. 174; Ferrera v. Parke, 19 Or. 141, 23 Pac. loc. cit. 885; Pease v. Smith, 61 N. Y. 477; Trust Co. v. Tod, 170 N. Y. 233, 63 N. E. 285; Mohr v. Langan, 162 Mo. 474, 63 S. W. 409, 85 Am. St. Rep. 503; Velsian v. Lewis, 15 Or. 539, 16 Pac. 631, 3 Am. St. Rep. 184.

There can be conversions under such circumstances as to not constitute a crime, and the term "unlawful," as used in the instruction, does not add to its meaning. In fact, most acts of conversion (equitable conversion excepted) are unlawful, because in violation of civil rights of others, although many of them are committed under an honest belief of right, and with no criminal intent. Such are not criminal, and yet this instruction makes no distinction.

We are enjoined by section 8057, R. S. 1909, to give to words and phrases their plain ordinary and usual sense, and with technical phrases having a peculiar and appropriate meaning in law to give meaning according to their technical import. The term "embezzle" is not synonymous with the term "convert," but is synonymous with the terms "fraudulently convert." Spalding v. People, 172 Ill. 40, 49 N. E. 993; Metropolitan Life Ins. Co. v. Miller, 114 Ky. 754, 71 S. W. 921; Teston v. State, 50 Fla. 137, 138, 39 South. 787.

As heretofore stated, this instruction does not use the terms "embezzle" or "fraudulently convert," but merely the words "unlawfully convert." Had it used the word "embezzle" in connection with the word "convert", it is our opinion that it would have been sufficient, particularly had such words been defined in other appropriate...

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