State v. Peck

• Decision Date: 02 July 1923
• Docket Number: No. 23704.,23704.
• Citation: 253 S.W. 1019,299 Mo. 454
• Parties: STATE v. PECK.
• Court: Missouri Supreme Court

253 S.W. 1019

299 Mo. 454

STATE v. PECK.

No. 23704.

Supreme Court of Missouri, in Banc.

July 2, 1923.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Robert Peck was convicted of a crime, and appeals. Reversed, and appellant discharged.

Hudson & Hudson and Abbott, Fauntieroy, Cullen & Edwards, all of. St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller and J. Henry Caruthers, Asst. Attys. Gen., for the State.

GRAVES, J.

Austin Peck, Jr., and Robert Peck were jointly indicted by the grand jury of the city of St. Louis, for the crime of embezzlement by a bailee. In the view we have of the case a short statement will suffice.

Peek & Co. (alleged to be composed of the two parties above named) was selling Dayton Coal, Iron & Railway stock to one Jordan Eilers of Gillespie, IL. There were several of these transactions. The transactions were not cash, but upon account, and Eilers was putting up collateral.. The collateral agreements ran thus:

"Peck & Company, Investment Bankers. Merchants-Laclede Building, St. Louis, Mo. July 28th, 1920, M. Jordan Oilers, Gillespie, III. We have today sold you the following stocks: Shares 1,500. Stock Dayton Coal, Iron & Ry. Price $3.25. Amount $4,875.00. Commission—Net amount $4,875.00. AL collateral until resale of above. Terms: Received 20 shares of Insurance Corporation. Loan value $500.00. 10 shares Insurance Corporation. 60 shares Pfd. Liberty Systems, and 100 shares common Liberty Systems. Kindly O. K. and return. [Signed] Jordan Eilers. (Lower left-hand corner.) It is understood and agreed that all securities carried in this account or deposited to secure the same be carried in our general loans and be sold or bought at public or private sale, without notice, when such a sale or purchase is deemed necessary by us for our protection."

The indictment was for the embezzlement of stocks received under the foregoing and similar instruments. The prosecuting witnest) Filers says that he executed the foregoing and other contracts. He said that the 30 shares of Insurance Corporation were delivered under this particular contract. The indictment covers 30 shares of the Insurance Corporation, 160 shares of the Liberty Systems Corporation, and 10 shares of Gillespie Coal Company.

Upon trial both defendants were convicted, but we are only interested in Robert Peck, the only defendant before this court. From a judgment and sentence of two years in the penitentiary he has appealed. At the trial he demurred to the evidence adduced by the state, and stood upon his demurrer. For our purposes the foregoing will suffice. There was a mass of testimony of things said and done both before and after the written contracts. Of this in the opinion.

I. This is an indictment for an embezzlement by a bailee, and not one for obtaining property by trick, fraud, or false pretenses. The defendant before us stood upon his demurrer to the evidence, and the question is whether or not the state made out a case of embezzlement by a bailee. As said In our statement there is a mass of evidence tending to show what transpired before the relationship of bailor and bailee actually arose, if in fact, under the written instrument set out above, it ever arose. Much of this testimony is without probative force under the instrument before us. Whether it would be of probative force under a different charge is not of interest in the determination of the instant case. The vital question is: Did the state have any substantial evidence to support this indictment?

II. The character of the transaction between Eilers, and Peck & Co., is gathered from the written memoranda of contracts, signed by Eilers, and his testimony relating thereto, so far as his oral testimony is pertinent and probative. There were three transactions between the parties, which cover all stock deposited with Peck & Co. by Eilers.

The first was on July 8, 1920, and in this instance there was a written memoranda, in words as the one we have set out, except the stocks were different. The second was on July 20th, and of this the witness Eilers says:

"I told him I was not desirous of buying any more stock for the fact that I didn't have any more money to put up. He agreed to take more of my securities to serve as collateral, which he accepted, and I also stated that I didn't know the value of the Dayton Coal, Iron & Railway stock, and he said that he would accepted (accept) it on the same plan that he had with me on the previous transaction."

The foregoing is Eilers' version of the transaction of July 20th which was by phone from Austin Peck to him. In this phone message Austin Peck was offering Eilers 1,500 more shares of Dayton Coal, Iron & Railway stock. So whatever was done on July 20th was done under the same agreement and arrangement as that of July 8th, which was done under a memoranda in writing in the exact form of the one which we have set out in full.

However, this case is more particularly bottomed on the transaction of July 28, 1920, the written memoranda of which is found above. Of this transaction, the witness Eilers says:

"A. Mr. Holmes came and got the stock. Q. Did you know Holmes to have been employed in the office of Peck & Co? A. I didn't know him until he introduced himself as one of the firm. Q. And you gave the stock to a man by the name of Holmes, did you? A. Yes, sir. Q. What stock did you turn over to him? A. Under date of July 28th? Q. Yes, sir. A. 1 turned over 100 shares of Liberty System, common, and 60 shares of Liberty System, preferred, 10 shares of the Gillespie Coal Company stock, and 30 shares of the Insurance Corporation."

The foregoing covers all the stock involved in the indictment before us, and as said this is the transaction upon which this indictment is founded. In the briefs it is said there were three joint indictments against the two Pecks, one for each of the transactions. As shown, the deposit off stock by Miele with. Peck & Co. was upon the same terms in each instance, so that it makes no difference out of which transaction the present indictment grew. It was, however, out of the transaction of July 28th, as shown by the whole course of the trial. These are really all the pertinent and probative facts shown by the state. When we say pertinent and probative, we mean under an indictment for embezzlement by a bailee. We are not discussing what might be pertinent and probative under other and different charges.

An indictment for the crime charged in the present case concedes the lawful possession of the property by the bailee. So, in the instant case, if the foregoing facts make out a bailment, we must determine whether or not there has been a conversion without the assent of the bailor. But there is the further question as to whether or not there Was a bailment at all. Of the latter in due course.

III. To get the status of Eilers and Peck & Co., we must resort to the contract. It will be remembered that these were not cash transactions. The contract says:

"We have to-day sold you the following stocks: Shares 1,500. Stack Dayton Coal, Iron & Ry. Price $3.25. Amount $4,875.00. Commission—Net amount $4,875.00. As collateral until resale of above."

This so far shows an account between Eilers and Peck & Co., with the stock sold to Eilers, held as collateral to the account.

The memoranda contract (signed by Milers) then further continues:

"Terms: Received 20 shares of Insurance Corporation. Loan value $500.00. 10 shares Insurance Corporation. 60 shares Pfd. Liberty System, and 100 shares common Liberty System. Kindly O. K. and return. It is understood and agreed that all securities carried in this account or deposited to secure the same be carried in our general loans and be sold or bought at public or private sale, without notice, when such a sale or purchase is deemed necessary for our protection."

This contract fairly construed means that Eilers has opened up an account with Peck & Co. by the purchase of 1,500 shares of Dayton Coal, Iron & Railway stock in the sum of $4,875, which stock was left with Peck & Co. for resale and as security for the account. The account was, in fact, first started by the transaction of July 8th. The latter portion of the contract not only covers the stock above mentioned, but the additional collateral as well. The first portion refers to the 1,500 shares sold to Ellers, by the express reference "as collateral until resale of above." The "above" was the 1,500 shares of Dayton Coal, Iron & Railway stock. By the latter portion...