State v. Rosefelt

• Decision Date: 04 April 1916
• Docket Number: No. 15068.,15068.
• Citation: 184 S.W. 904
• Parties: STATE v. ROSEFELT.
• Court: Missouri Court of Appeals

184 S.W. 904

STATE v. ROSEFELT.

No. 15068.

St. Louis Court of Appeals. Missouri.

April 4, 1916.

Appeal from St. Louis Court of Criminal Correction; Benj. Clark, Judge.

"Not to be officially published."

S. I. Rosefelt was convicted of embezzlement, and he appeals. Reversed, and defendant discharged.

McShane & Goodwin, of St. Louis, for appellant. Howard Sidener and J. R. Weinbrenner, both of St. Louis, for the State.

REYNOLDS, P. J.

Defendant was proceeded against by information filed by the Assistant Prosecuting Attorney of the St. Louis Court of Criminal Correction, in that defendant, at the city of St. Louis, on May 22nd, 1914, "$12.75 lawful money of the United States, all of the value of $12.75, all the property of M. Sternberger then and there being found unlawfully, wilfully did then and there steal, take and carry away without the consent of the owner, with the intent then and there to permanently deprive the owner of the use thereof, and to convert the same to his own use," contrary, etc. Pleading "not guilty," defendant was tried before the court, a jury having been waived.

The transcript of the judgment in this case, after recital of the plea, submission, etc., proceeds:

"Thereupon the trial of this cause proceeded, and the court having heard all of the evidence and being fully advised of and concerning the premises, doth find the defendant guilty of embezzlement. It is therefore considered and adjudged by the court, that the said defendant for his said offense pay to the State of Missouri, for the use of the city of St. Louis, a fine of $50, together with the costs herein accrued, and that execution issue therefor."

The judgment in this case will have to be reversed.

In the first place, section 4901, Revised Statutes 1909, provides, among other things, that:

"If, upon the trial of any person indicted for larceny, it shall be proved that he took the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof, be entitled to be acquitted, but the jury shall return as their verdict that such person is not guilty of embezzlement, but is guilty of larceny, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such larceny; * * * and no person so tried for embezzlement or larceny, as aforesaid, shall be liable to be afterward prosecuted for larceny or embezzlement upon the same facts." (Italics ours.)

Our Supreme Court has decided, after what may be called rather diverse opinions on the question, that this part of the section is constitutional in so far as allowing conviction for embezzlement under an indictment charging larceny. This, on the theory that embezzlement is the lesser degree of the same crime. See State v. Thompson, 144 Mo. 314, 46 S. W. 191. Passing upon this same section, which was then section 2367, Revised Statutes 1899, our court, in State v. Cornwall, 88...