State v. Rogers

• Decision Date: 25 May 1928
• Docket Number: No. 28242.,28242.
• Citation: 7 S.W.2d 250
• Parties: THE STATE v. PRESTON ROGERS, Appellant.
• Court: Missouri Supreme Court

7 S.W.2d 250

THE STATE v. PRESTON ROGERS, Appellant.

No. 28242.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

AFFIRMED.

S.E. Garner for appellant.

(1) Under the facts in evidence no case is made on a charge of embezzlement by bailee, and the demurrer should have been sustained. Sec. 3329, R.S. 1919; State v. Meyers, 68 Mo. 266; Kelley's Criminal Law (3 Ed.) sec. 681, p. 609; State v. Betz, 207 Mo. 589; State v. Jamison, 186 S.W. 972; State v. Smith, 213 S.W. 425. (2) The court erred in overruling defendant's demurrer. State v. Betz, 209 Mo. 589. (3) The information is fatally defective in that it merely concludes that defendant was bailee, instead of stating facts sufficient to show the bailment. People v. Poggi, 19 Cal. 600; Kelley's Criminal Law (3 Ed.) sec. 681, p. 609; State v. Betz, 207 Mo. 589; in the allegations of the information and the proof, in this, to-wit: The information charges that Casey P. Adams was the owner of the money and that it was given to defendant as bailee of, for and on behalf of Casey P. Adams, whereas, the proofs show that the money was paid to defendant in the purchase of property for which defendant was agent. Kelley's Criminal Law (3 Ed.) sec. 681, p. 609.

North T. Gentry, Attorney General and A.M. Meyer, Special Assistant Attorney-General, for respondent.

(1) The evidence was sufficient. Bailment was shown. Sec. 3329, R.S. 1919, which creates the offense with which the defendant is charged, specifically recognizes money as the possible subject of bailment. State v. Burgess, 268 Mo. 407; Reg. v. Aden, 12 Cox C.C. 512; Goodwyn v. State (Tex. Crim.), 64 S.W. 251; Dowdy v. State (Tex. Crim.), 64 S.W. 253. Any property which would be the subject of larceny may be embezzled as by a bailee. State v. Seeney, 59 Atl. 48; State v. Meyers, 68 Mo. 266. The evidence clearly shows that the defendant was not the agent of the prosecuting witness nor of Mrs. Adams. They were to pay him no commission. He was not authorized by Adams to do any juristic act. He represented that all that remained to be done was the payment of the money and his service in that connection was to be purely ministerial. His possession of the money was to "transfer and deliver to Blase." 20 C.J. 446, note 49c. The transaction was a bailment of specific funds for a specific purpose and was within the statutes defining embezzlement by a bailee. State v. Brewington, 25 Del. 71. (2) The information is sufficient to charge embezzlement by defendant as a bailee. Sec. 3329, R.S. 1919; State v. Stevens, 281 Mo. 639; State v. Cross-white, 130 Mo. 365; State v. Burgess, 268 Mo. 412; State v. Brown, 304 Mo. 81; Webb v. York, 79 Fed. 616; Keys v. State, 112 Ga. 395. The rule of the California case cited by appellant is not law in any other state, nor has it been strictly followed in the jurisdiction in which it was decided. State v. Meyers, 68 Mo. 267; Kelley's Cr. Law & Prac. (3 Ed.) sec. 681, pp. 609-610.

WHITE, J.

Defendant was tried in the Circuit Court of the City of St. Louis on charge of embezzling, August 15, 1924, as bailee, $265, the property of Casey P. Adams. On trial by jury, June 29, 1926, he was found guilty and his punishment assessed at imprisonment in the penitentiary for two years. Judgment followed, from which he appealed.

The State introduced evidence to show that in August, 1924, he obtained from Alice B. Adams, wife of Casey Adams, the sum of $150, and later $200 from Casey P. Adams, to be taken by him and paid to one F.C. Blase, as earnest money in part payment of the purchase price of certain property owned by Blase.

The appellant, while admitting the receipt of the money, contends that it was not a bailment; that the circumstances show the relation of debtor and creditor between him and Adams. That makes it necessary to examine the evidence at some length.

I. The defendant Rogers was a sort of real estate dealer, although it was not shown that he had any office. He came to Allie B. Adams in August, 1924, to interest her in the purchase of real estate, and said to her: "If you are Bailment: interested in any place ... if you should find a Debtor and place you like, you let me know. I can look after it Creditor: for you and take care of it." She then mentioned a Agent. place in Lucas Avenue, St. Louis, a twenty-room house, which she wanted. The defendant found out about the property. Afterwards he informed her that the price of the place was fourteen thousand dollars, and if she would pay $150, that would be earnest money. She accordingly paid him $150, and took his receipt, as follows:

                "No. ____.                              August 7, 1924
                

Received of Mrs. Allie B. Adams, one hundred and fifty dollars for part payment on house No. 2924-26 Lucas to Avenue, City.

                  "$150.00.                  Preston Rogers, Agent
                                                "103 North Jefferson."
                

He came back a week later and said that when he closed the deal she would have to give $200 more. She put him off in order to consult with her husband, who later gave him the $200. He then said that a thousand dollars would have to be paid down on the place and he would take care of the rest of the thousand dollars over the $350 earnest money. The Adamses, September 23rd, moved into the place described in the receipt. Some time in October the owner, Mr. Blase, passed the place and found it occupied by the Adamses. He then for the first time learned of the situation.

Prior to that time the defendant Rogers had gone to Blase and told him he had a client who wanted to buy the property, inquired the price and terms, etc. Blase said he would pay Rogers a commission of $190 if the deal was closed. Rogers, after getting the money from the Adamses, told Blase that Adams had paid him only $75 as earnest money, but that he would advance another ten dollars. Accordingly he paid Blase $85, and took receipt beginning, "Received of Preston Rogers for Casey P. Adams and Allie Adams," and stating that it was for the purchase price of the property described. The total price was to be fourteen thousand dollars, one thousand dollars cash and the balance on terms stated in receipt. This receipt was signed by A.F.C. Blase, owner. It contained a statement that the terms and conditions were accepted, and was signed, "Casey P. Adams and Allie B. Adams, by Preston Rogers Agent, Purchaser Agent." It is not shown that either of the Adamses knew anything about the receipt.

After Blase discovered the Adamses in his house they came to his office to fix the matter up. He testified that Rogers had lied to him about the situation; he never knew that Rogers had collected any money from Adams except the $75 mentioned. He closed a separate deal with the Adamses and refused to pay Rogers any commission. According to that deal he gave the Adamses credit for the $85 paid him by Rogers, and took a mortgage on the house of the Adamses in Webster Groves for $915. The Adamses made no further payments and be foreclosed that mortgage.

On cross-examination Mrs. Adams said:

"Q. Now, you knew when you were dealing with Rogers that he was simply acting as an agent, didn't you? A. Yes sir.

"Q. And you knew that you were putting up money as earnest money to buy a piece of property, didn't you? A. Yes sir.

"Q. And you knew that the money that was turned over to Rogers was not to come back to you, didn't you? A. Yes sir.

"Q. You didn't expect it back, did you? You didn't expect to get your money back, did you? A. No, I didn't expect to get it back. I expected it to go on the place.

"Q. There was nothing said at the time the money was turned over that you were to get it back in the event the deal did not go through, was there? A. Oh, yes, Mr. Rogers said if the deal doesn't go through you will get your money back."

After the Adamses found out that only $85 had been paid to Blase, Rogers told them that he would take care of the matter and see that Blase got the balance of the money.

Among other things, Blase in his testimony said: "I learned that Adams had paid Rogers more than Rogers paid me, and at that time Rogers assured the Adamses that he would make it good."

Casey Adams, on the stand, was asked how he happened to give the $200 to Rogers and said, "Because he said he would need that to finish up the deal with the property owner so that I could go into possession of the property."

On August 13th, defendant gave the Adamses another receipt for the earnest money, "A part purchase money for a certain parcel of improved property," describing it and mentioning the terms of purchase. This was signed by Graaf Realty Company. Daniel Graaf testified that he was doing real estate business in St. Louis under the name and style of The Graaf Realty Company; that there was no other firm in St. Louis by that name, and that the signature to the contract mentioned was not his signature; that he had no knowledge of the property and received no money from the defendant on account of the transaction.

In his first conversation with Mrs. Adams, Rogers told her he would "look after it" for her, but the Adamses did not pay nor promise to pay him anything for any services he might render them. When he receipted for the $150 he signed as agent. That could mean only as an independent real estate broker. It precludes the notion that he was representing her in the transaction. At the same time she knew he had no authority to make a contract for the seller. The conferences at which Rogers agreed to make the money good, fix it up in some way, do not show that the relation of debtor and creditor existed between Adams and Rogers. The character of the transaction was determined by what was done and what was intended at the time the money was paid. Any subsequent understanding between the parties would not affect it. The Adamses evidently were...