State v. Pratt

• Decision Date: 24 June 1889
• Citation: 11 S.W. 977,98 Mo. 482
• Parties: STATE v. PRATT.
• Court: Missouri Supreme Court

11 S.W. 977

98 Mo. 482

STATE v. PRATT.

Supreme Court of Missouri.

June 24, 1889.

EMBEZZLEMENT — INDICTMENT.

1. Rev. St. Mo. 1879, § 1817, provides that in an indictment for embezzlement it shall be sufficient

to describe the money taken simply as money, and such allegation shall be sustained by proof of any amount of coins or notes taken, though the species of coin or the nature of the notes shall not be proved. Held, that an indictment in one count for embezzling, within three years, a certain sum of money, is sustained by proof of the embezzlement within that time of such sum, or any portion thereof, and under section 1821 it is not necessary to specify the time at which the offense was committed, as time is not the essence of the offense.

2. A conviction for embezzlement will not be set aside because the court in its instructions referred to the intent to deprive the owner, etc., "of the use thereof absolutely," instead of the intent to deprive such owner "of his ownership therein."

3. The offer or intent of the accused to restore the money taken does not relieve the act of its criminal nature.

4. The order of the admission of testimony is in the discretion of the trial court.

5. Where the evidence of the guilt of accused is overwhelming, the improper admission of the testimony of an accomplice is not prejudicial to defendant.

Appeal from St. Louis criminal court; J. C. NORMILE, Judge.

Joseph G. Lodge and Wm. C. Jones, for appellant. The Attorney General, for the State.

SHERWOOD, J.

The defendant was indicted for embezzling certain money and bank-notes of the value of $3,518 belonging to the McCormick Harvesting Machine Company, the denomination or description of which money and bank-notes was alleged to be by the grand jurors unknown. The indictment contained but one count. The result of the trial was the defendant was convicted, and his punishment assessed at three years' imprisonment in the penitentiary, whereupon he appealed to this court.

1. Our statute provides: "If any agent, clerk, apprentice, servant, or collector of any private person, or of any copartnership, except persons so employed under the age of sixteen years, or if any officer, agent, clerk, servant, or collector of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent to embezzle or convert to his own use, without the assent of his master or employer, any money, goods, rights in action, or valuable security or effects whatsoever, belonging to any other person, which shall have come into his possession, or under his care, by virtue of such employment or office, he shall, upon conviction, be punished in the manner prescribed by law for stealing property of the kind or the value of the articles so embezzled, taken, or secreted." Rev. St. 1879, § 1320. Upon this section the indictment is bottomed. And our statute further declares: "In every indictment in which it shall be necessary to make any averment as to any money or any note being or purporting to be made or issued by any bank incorporated by law, or made or issued by virtue of any law of the United States, it shall be sufficient to describe such money or note simply as money, without specifying any particular coin or note, and such allegation shall be sustained by proof of any amount of coin, or of any such note, although the particular species of coin of which such amount was composed, or the particular nature of such note, shall not be proved; and in cases of larceny, embezzlement, and obtaining money or such notes by false pretenses, by proof that the offender stole, embezzled, or obtained any piece of coin, or any such note, or any portion of the value thereof, although such piece of coin or such note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, or to any other person, and such part shall have been returned accordingly." Id. § 1817. The last quoted section does away with many of the difficulties which formerly attached to prosecutions for the crime of embezzlement by rendering it unnecessary to allege or to prove, in order to a conviction...