State v. Porter

• Citation: 26 Mo. 201
• Parties: THE STATE, Defendant in Error, v. PORTER, Plaintiff in Error.
• Decision Date: 31 January 1858
• Court: Missouri Supreme Court

26 Mo. 201

THE STATE, Defendant in Error,

v.PORTER, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1858.

1. Counts for larceny and embezzlement may be joined in the same indictment; and where they relate to the same transaction it is not error to refuse to compel the prosecutor to elect upon which count he would proceed.

2. The words “belonging to any other person,” in section 39 of article 3 of the act concerning crimes and punishments (R. C. 1855, p. 579), mean any other person than the officer, servant, &c., guilty of embezzlement.

3. In an indictment founded on section 39 of article 3 of the act concerning crimes and punishments (R. C. 1855, p. 579), it is not necessary that the prosecution should prove by direct and positive evidence that the conversion charged is without the consent of a railroad corporation, the alleged master or employer.

4. In an indictment founded on section 37 of the “act to authorize the formation of railroad associations and to regulate the same” (R. C. 1855, p. 430), it is not necessary to allege a neglect or refusal on the part of defendant to pay over on demand the moneys, &c., alleged to have been converted.

5. In the case of an indictment against a ticket agent for embezzling funds belonging to a railroad company it is competent for the prosecution to show the course of business pursued by the defendant and required by the rules of the company by introducing in evidence duplicate blank returns used by the ticket agents of the company; the prosecution is not bound in such case to resort to the blank returns actually filled up and transmitted by the defendant as ticket agent to the treasurer of the company.

6. It is not error to permit a witness for the prosecution to be recalled and re-examined after the evidence on the part of the prosecution and also on the part of the defence is closed.

Error to Cole Circuit Court.

This was an indictment against James J. Porter for larceny and embezzlement as the agent of the Pacific Railroad. The indictment contained three counts; one for embezzlement, framed on the 39th section of article 3 of the act concerning crimes and punishments (R. C. 1855, p. 579); one for larceny, on section 25 of article 3 of said act, and the third for embezzlement, on section 37 of the act concerning railroad corporations (R. C. 1855, p. 430).

The defendant moved the court to quash the first and third counts of the indictment. The motion was overruled. The defendant then moved the court to require the prosecution to elect the count of the indictment upon which the defendant should be tried. The court refused the motion.

During the progress of the trial the court admitted in evidence, against the objection of defendant, a blank form for a ticket agent's return. These blanks read as follows:

“N. B. Agents are required to remit to the treasurer daily all moneys received by them on account of the company, deducting only the amount paid for expenses or freight forwarded.

Pacific Railroad,______station,______185--. Samuel Copp, jr., treasurer. Sir:--The receipts of this office this day have been as follows, viz: For freight and charges on goods received and on goods forwarded, including extra baggage, storage and interest, $____; from passengers, as per report No.____ to general ticket agent, $____; total, $____. I hand you herewith cash to balance.

[Signed]

______ ______, Agent.”

The evidence showed that the blank receipts or returns filled up by defendant Porter and transmitted to the treasurer of the company were similar to the above.

After the close of the evidence on both sides and the instructions were agreed upon by the court, the court permitted the prosecution to recall witnesses and give additional testimony. Exceptions were duly taken.

Parsons and Edwards, for plaintiff in error.

I. The defendant could not be indicted for embezzling from the company, he being their agent. The words “any other person” do not refer to the principal or employer. The first count is bad.

II. The third count is like the first excepting that it does not charge embezzlement in terms, but a felonious conversion. It is insisted that this count is under section 39 of article 3 of the act concerning crimes and punishments, and bad for a like reason as the first. To make the indictment good under the railroad act, it was necessary to allege a conversion and a demand and a refusal to account. Nor is the conversion in this case alleged to have been without the consent of the company.

III. The blank return read in evidence was inadmissible. It did not appear that the blank had ever been in the custody of the prisoner or that he had ever seen it. Nor did it appear that the prisoner had ever adopted this blank. His returns were in the possession of the prosecution. They should have been required to produce them as the best evidence of the form and substance of the returns the prisoner was in the habit of making. (1 Greenl. Ev. 99; 2 Cow. & Hill's Notes, 540; Commonwealth v. Kinnison, 4 Mass. 646.)

IV. The first and second instructions given at the instance of the prosecution are erroneous. The same objections apply to them as to the first and third counts of the indictment. The fifth instruction was erroneous. It was necessary to show under the first count by positive proof, if attainable, that the conversion was without the assent of the employers, the Pacific Railroad Company. (Williams v. East India Co. 3 East, 193, 201; 2 Cow. & Hill's Notes, 423-4; Rex v. Rogers, 2 Camp. 654.) This was a material averment, yet no direct or positive evidence was introduced to support it. Mr. McPherson, the president, did not swear that the conversion was without the consent of the company; nor was any officer having control of the funds of the company produced on the trial. The objection was not removed by the confession of the prisoner. (People v. Hennessy, 15 Wend. 154.) The 25th instruction asked by defendant should have been given.

V. It was too late after the close of the testimony and the court had declared the law of the case, for the prosecution to offer other evidence in chief.

VI. The 14th instruction should have been given. The jury were bound to know what kind of funds had been embezzled. Judgment could not be rendered for the conversion of funds unknown.

VII. There was no evidence except the prisoner's confessions that any crime had been committed.

Ewing, (attorney-general,) for the State.

I. It was not necessary to allege in the third count of the indictment the non-assent of the Pacific Railroad Company. (1 R. C. 1855, p. 430.)

II. A motion does not lie to quash an indictment for a felony. (State v. Rector, 11 Mo. 28; State v. Smith, 16 Mo. 550; 1 Chitt. Crim. Law, 300.)

III. The motion to require the prosecution to elect on which count they would proceed to trial was properly overruled. (R. C. 1855, p. 640; R. C. 1855, p. 1176; State v. Jackson, 17 Mo. 544; State v. Lenard, 22 Mo. 449; 3 Hill, 160; Bailey v. Ohio, 4 Ohio, State R. 440.)

IV. The blank forms of reports made by defendant, as agent of the Pacific Railroad, to the treasurer of the company were original and primary evidence.

V. It was a matter of discretion with the court below to permit the State to give further testimony after the defence had closed their testimony. (Rucker v. Eddings, 7 Mo. 115; Brown v. Burrows, 8 Mo. 26; 4 Binn. 198; 5 Binn. 489.)

VI. The court committed no error in giving or refusing instructions. (Hunter v. State, 2 Mo. 135; Hawkins v. State, 7 Mo. 192; Roscoe C. E. 41; Whart. C. L. 420.)

VII. The words “belonging to any other person” mean any person except the officer, agent, clerk, &c., embezzling. (People v. Hennessy, 15 Wend. 147; 2 Metc. 343.)

VIII. A demand and refusal of payment by defendant were not necessary before he could be convicted under the third count.

IX. The offence was conclusively established by Felps' testimony alone. It was equally well established by the confession of defendant and the facts and circumstances corroborating it.

NAPTON, Judge, delivered the opinion of the court.

Several points have been raised in this case which we will notice in their order.

1. The refusal of the court to compel the prosecutor to elect upon which count he would proceed is one of the errors assigned. The indictment contains three counts--one for larceny and two for embezzlement. Of the latter, one count is framed upon a section of the general act concerning crimes and punishments, and the other on the 37th section of the railroad corporation act. (R. C. 1855, p. 430.) Our statutes contain some provisions on the subject which would seem to preclude all doubt about the propriety of the joinder of counts made in this indictment. The 23d section of the 4th article of the act concerning practice in criminal cases (R. C. 1855, p. 1176,) says that “counts for larceny and embezzlement may be joined in the same indictment.” The 15th section of the 9th article of the act concerning crimes and punishments declares that upon an indictment for larceny the defendant may be convicted of embezzlement; and, vice versa, that he may be convicted of larceny on an indictment for embezzlement. If a defendant can be convicted of larceny where embezzlement only is charged in the indictment and may be convicted of embezzlement where the charge is larceny, it would seem to follow, without any express provision such as is found in the 23d section referred to above, that counts on larceny and embezzlement could be joined.

In point of law, however, and without reference to these statutes, it is not error to insert in the same indictment several distinct felonies, though committed at different times, provided they are of the same degree, and will admit of the same legal judgment. If the several counts refer to different transactions, in point of fact, it is a matter of discretion with the court to compel the prosecutor to elect upon which count he will proceed, and the power ought to be exercised in cases where...