State v. Ross

• Decision Date: 22 December 1925
• Docket Number: No. 26572.,26572.
• Citation: 279 S.W. 411
• Parties: STATE v. ROSS.
• Court: Missouri Supreme Court

279 S.W. 411

STATE v. ROSS.

No. 26572.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Motion for Reheating Denied January 6, 1926.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Donald W. Ross was convicted of embezzlement, and he appeals. Affirmed.

Bass & Bass, of St. Louis (Cosgrove & Doyle, of Kansas City, of counsel), for appellant.

Robert W. Otto, Atty. Gen., and W. P. Prank, Asst. Atty. Gen., for the State.

WHITE, J.

The appeal is from a judgment in the circuit court of the city of St. Louis upon conviction of embezzlement. It is charged that the defendant, while acting as deputy commissioner of finance of the state of Missouri, in charge of the assets of the Night and Day Bank in the city of St. Louis, November 24, 1922, embezzled $3,342.47 which came into his hands.

The evidence shows that John C. Hughes was appointed bank commissioner of the state of Missouri in 1921, and later, when the office of commissioner of finance was created, he was appointed to that position in July, 1922. As commissioner of finance Hughes took charge of the Night and Day Bank of St. Louis in January, 1922. In May, 1922, he appointed defendant, Ross, special deputy finance commissioner, and placed him in charge of the assets of that bank, and Ross remained so in charge continuously thereafter until the time of the alleged offense.

Hughes was succeeded as commissioner of finance by Prank C. Millspaugh, who retained Ross as deputy commissioner.

The law firm of Case & Miller, of St. Louis, was employed by Hughes to act for the commissioner in collecting money due the Night and Day Bank, and served in that capacity while Ross was in charge of the bank. According to the testimony of Clarence T. Case, a member of the firm of Case & Miller, they sent to Ross a check for $3,342.47. This check, payable to "D. W. Ross, Examiner in Charge," was for the total proceeds of a large number of collections which those attorneys had made. November 24th Ross cashed the check and deposited the proceeds in the Liberty Central Trust Company. His deposit slip, in his own handwriting, and his account with the Liberty Central Trust Company, showed the deposit to his own individual account. He carried two accounts in that institution, one personal, account and one as "Special Deputy Commissioner of Finance in Charge of the Night and Day Bank." The proceeds of the check never got into that official account.

After Millspaugh succeeded Hughes, he found this deposit and asked Ross why he placed the check in his own personal account. Ross made no satisfactory explanation. At that time he was short $4,000 or $5,000, but refused to admit that he was short the exact amount of that check. This last statement of Millspaugh was stricken out on motion of defendant's counsel because not responsive to the question asked witness, but a voluntary statement.

Several witnesses, some of whom worked with Ross and knew his signature well, identified his handwriting in his indorsement of the check and his name on the deposit slip. Defendant offered no evidence upon the merits of the case. The jury, December 22, 1923, found him guilty of embezzlement as charged, and assessed his punishment at imprisonment in the penitentiary for five years.

I. The indictment contained two counts. Defendant was found guilty on the second count. He filed a motion to quash the indictment, and assigns error to the action of the trial court in overruling the demurrer. The offense charged is defined by section 3334, R. S. 1919, and appellant claims that the indictment fails to charge an offense under that section, or any other section, because it does not allege that he converted the money which came into his possession "by virtue of the trust reposed in him," as the language of the statute describes the offense. Embezzlement is purely a statutory crime, and in order to charge the offense an indictment must substantially follow the language of the statute or set forth the facts which bring, it within the terms of the statute. State v. McWilliams, 267 Mo. 449, 184 S. W. 90; State v. Moreaux, 254 Mo. loc. cit. 403, 162 S. W. 158; State v. Harmon, 106 Mo. loc. cit. 655, 18 S. W. 128.

Section 3334 reads:

"If any officer, appointed or elected by virtue of the Constitution of this state, or any law thereof, or any mortgagee, trustee, executor, * * * shall convert to his own use, in any manner whatever, or shall use by way of investment in any kind of property or merchandise, or shall make way with or secrete any portion of the public moneys, or any moneys that may have come to him * * * by virtue of * * * his * * * office or official position, or by virtue of any trust reposed in him * * * such officer * * * shall, upon conviction, be punished * * * for stealing property of the kind or the value of the article so embezzled, converted, taken or secreted."

The statute was intended to apply to public officers and to persons holding other positions of trust. It condemns the conversion, in "any manner whatever," of the public moneys that may have come to such person by virtue of his official position, or moneys which may have come to him by virtue of any trust reposed in him. The disjunctive "or" makes it apply to varying facts. It includes embezzlement by administrators and other technical trustees; the clause referring to "the trust reposed in him" applies especially to those persons. The language which the appellant claims was left out was unnecessary in an indictment of a public officer, and would be superfluous if it were in the indictment.

The indictment charged that November 24th Ross was the duly appointed and acting special deputy commissioner of finance, in charge of the affairs of the Night and Day Bank, and while acting as such "was then and there authorized to take, collect, receive, and have under his supervision, care, and control, money and property, the property of the said Night and Day Bank of the city of St. Louis, Mo., a corporation as aforesaid; that the said Donald W. Ross, as said acting agent and said special deputy commissioner of finance of the state of Missouri, as aforesaid, did then and there receive and take into his possession, and have under his supervision, care, and control as trustee, for and on behalf of the said Night and Day Bank of the city of St. Louis, Mo., a banking corporation as aforesaid, under and by virtue of his office and position as said acting agent and special deputy commissioner of finance, as aforesaid, $3,342.47," and November 24, 1922, converted same to his own use.

Whatever trust was reposed in defendant is implied in this description of his official character. While that allegation is not in the exact language of the statute, in describing the offense it sets forth all the facts to which the general terms of the statute apply. It was said in the case of State v. Larew, 191 Mo. loc. cit. 198, 89 S. W. 1033:

"It will * * * be seen the pleader has applied the statute to the concrete facts in the case and fully advised the defendant of the charge and accusation against him."

It is further claimed that the use of the words "as trustee" in the indictment vitiates the indictment, because, if defendant had charge of the money as an official of the state, he was not a trustee and could not have converted as trustee. The phrase, "as trustee," is in the nature of a conclusion by the pleader from the facts stated. The facts alleged in the indictment show the character in which the defendant received the money and embezzled it. Any general conclusion by the pleader as to the legal effect of such facts would not control their import. We had occasion to say, in the case of State v. Collins, 297 Mo. loc. cit. 267, 248 S. W. 599, that the instrument set out in the information must be given effect as it reads, and the conclusion of the pleader as to its legal effect was surplusage. That applies here. The indictment sets out the facts, and the expression, "as trustee," the pleader's conclusion regarding the effect of such facts, is mere surplusage.

II. Before the trial, December 21st, the defendant filed a plea of former conviction. This plea set out that Ross was indicted and found guilty at the December term, 1923, of the circuit court of the city of St. Louis, on the charge of embezzling, on the 28th day of November, 1922, $28,250. It is alleged that the offense charged there embraced the same offense described in the indictment in the present case. The record does not show whether at the time the defendant offered any evidence in support of that plea, but it shows that on December 21 the court overruled it and no objection was made.

The defendant then filed a plea of merger, in which he alleged that he was indicted, tried, and convicted of embezzling $28,250 on the 28th, day of November, 1922, and that it was the same offense with which he was now charged. At the trial the defendant offered the files in the other case, it being the same case mentioned in the plea of former conviction, and the case which is now here as No. 26571, 279 S. W. 405. On objection of the state the evidence was excluded. The defendant then offered...