State v. Reilly

• Decision Date: 30 October 1877
• Citation: 4 Mo.App. 392
• Parties: STATE OF MISSOURI, Respondent, v. BERNARD J. REILLY, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 392

STATE OF MISSOURI, Respondent,

v.BERNARD J. REILLY, Appellant.

St. Louis Court of Appeals, Missouri.

Oct. 30, 1877.

1. It is not error for the trial court, in a criminal case, to refuse to delay the trial until the return of an attachment for an absent witness. If the defendant fails to file an affidavit and application for continuance, and takes the risk of the witness being found on attachment, he must abide the consequence of the witness not being found.

2. A departure from the prescribed formalities in making up the jury-list will not furnish ground for a new trial, or for a reversal, unless it be shown that there was fraud or collusion, or that the losing party suffered material injury.

3. It is unfair for the circuit attorney, in his closing argument to the jury, to accuse the prisoner of fraudulently smuggling jurors into the panel for the purpose of securing an acquittal, when such accusation is unwarranted by the record; and the court should promptly check the attorney, and by the administration of a proper rebuke divest the case of the unfair influences thus introduced.

4. The mere conversion of money to the agent's own use after collection, and failure to pay it over to his principal, does not constitute the crime of embezzlement. There must be a felonious intent, at the time of the conversion, to appropriate it to the agent's own use and to deprive the owner of it.

5. Where the agent, though mistaken, really believes he has a just claim against his principal, and in good faith undertakes, by holding his principal's money, to secure himself against loss, there can be no criminal intent. But where the claim is known by the agent to be wholly unfounded, its assertion will be no defence under the statute.

APPEAL from St. Louis Criminal Court.

Reversed and remanded.J. G. LODGE and C. P. JOHNSON, for appellant: Where it appears that the defendant has been injured by a refusal to give time to procure a witness, this is ground for a reversal.-- The State v. Klinger, 43 Mo. 130. A departure from prescribed formalities in making up a jury-list is a ground for a new trial.-- Holme v. The State, 54 Mo. 153. Embezzlement; criminal intent.--1 Bishop's Cr. Law, secs. 286-288; Kelly's Cr. Law, secs. 582, 601. The defence of a claim by the agent against his principal.--2 Bishop's Cr. Law, sec. 376; Regina v. Hodgson, 3 Car. & P. 422; Regina v. Norman, Car. & M. 501; Regina v. Creed, 1 Car. & Kir. 63.

L. B. BEACH and R. G. FROST, for respondent: Continuance.--Wag. Stat. 1040, sec. 7; The State v. Klinger, 43 Mo. 127. Application for continuance must show diligence.-- Cline v. Brainard, 28 Mo. 341; Farmers & Drovers' Bank v. Williamson, 61 Mo. 259; The State v. Murphy, 430. The objection to the jury on ground of irregularity is too late after verdict.-- The State v. Brien, 59 Mo. 413; The State v. Piltz, 58 Mo. 556. It is enough if there be a fraudulent conversion, and that being shown, the intent is established.-- The People v. Dalton, 15 Wend. 581. An appellate court will not review the discretion of a trial court in the control of the utterances of counsel during the trial and argument.-- The State v. Kring, 64 Mo. 591; Lloyd v. Hannibal, etc., R. Co., 53 Mo. 509.

LEWIS, P. J., delivered the opinion of the court.

The defendant appeals from his conviction under an indictment for embezzling $20,000, the property of Bridget M. Ivory. He alleges error committed by the Criminal Court in refusing to postpone the trial until he could procure the attendance of an absent witness. When the case was called for trial, James Clemens, a witness for defendant, did not answer. It appearing from the marshal's return that he had been personally served, the court ordered an attachment returnable forthwith. Defendant thereupon asked that the trial be delayed until the return of the attachment, and offered to make affidavit to certain facts which, for the present purpose it may be conceded, would have entitled him to a continuance if presented in that form. The circuit attorney, upon defendant's demand, declined to admit that the witness, if present, would testify as alleged. The court directed the trial to proceed. The attachment was returned “not found,” and the case went to the jury without Clemens's testimony.

There was no error in this proceeding. A mere offer to make affidavit, in applying for a continuance, is of no force unless the adverse party respond with a consent that the statement may be made upon oath, orally. In the absence of such consent, the applicant can claim nothing without the affidavit itself. It does not appear from the bill of exceptions that the court refused to allow an affidavit to be made, or in any manner intimated that one would be ineffectual if presented. It may be said that the defendant was not asking for a continuance, but only for a temporary delay. He had before him, however, the alternatives of demanding a continuance upon the affidavit, presented in due form, and of risking the production of the witness upon the attachment during the trial. He chose the latter, and cannot now complain of the result.

While the jury were empanelling, it was discovered that one of those on the list had not been placed there by the jury commissioner, but was surreptitiously substituted for one whose name had been erased. He was discharged, and the panel was completed from those remaining. The circuit attorney, in his closing argument to the jury, distinctly charged that two jurors had been fraudulently smuggled into the panel, by defendant's procurement, in order to secure an acquittal. Defendant's motion for a new trial was accompanied by an affidavit declaring the falsity of this charge, and that its utterance had seriously prejudiced his defence. The court's refusal of a new trial is now urged for error, on account both of the unlawful composition of the jury and of the circuit attorney's unfairness in connecting the defendant therewith.

It is settled in this State that a departure from prescribed formalities in making up the jury-list will not furnish ground for a new trial, or for a reversal, unless it be shown that there was fraud or collusion, or that the losing party suffered material injury. The State v. Breen, 59 Mo. 413. For aught that appears in this record, the substituted jurors were placed on the list without fraudulent design, and were as competent and as fair for the defendant as the persons whose places they filled.

Nothing in this record justifies the serious accusation against the defendant made by the circuit attorney in his closing address to the jury. That officer should never be supposed to desire the conviction of the prisoner on trial, without reference to the question of guilt or innocence. As the representative of a just and good government, he should, if any thing, be more solicitous to preserve the liberty and fair repute of the upright citizen than the punishment of the malefactor. When the charge of fraudulently tampering with the machinery of justice is openly made by such an officer, the jury hearing it may well conclude that it must be founded upon facts within his official knowledge. It may be assumed, in this case, that the officer believed himself justified as to the truth of the accusation. But it was none the less unfair for him to publish it when the defendant could neither deny nor explain, and when every suspicion against him might gather force from his arraignment on a charge of felony. A trial cannot be a fair one in which the accused is subjected to undue prejudices in the minds of his triers. Some allowance must be made for hasty utterances in the heat of advocacy, but no such indulgence should overstep the bounds of justice. In this case the court should have promptly checked the course of the circuit attorney, and, by a proper rebuke, if necessary, have endeavored to divest the case of the unfair influence thus introduced.

Embezzlement as a crime is of purely statutory creation. The earliest English statute was enacted in the reign of Henry VIII., and was induced by the doubts entertained whether the delinquencies which it embraced could be brought within the common-law definition of larceny. The law has undergone several modifications by later acts of Parliament. In the several States of our Union the statutory definitions of the offence differ in so...