State v. Roussin

• Decision Date: 05 November 1945
• Docket Number: 39556
• Citation: 189 S.W.2d 983,354 Mo. 522
• Parties: State v. Eugene F. Roussin, Appellant
• Court: Missouri Supreme Court

189 S.W.2d 983

354 Mo. 522

State v. Eugene F. Roussin, Appellant

No. 39556

Supreme Court of Missouri

November 5, 1945

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Reversed and remanded.

John E. Swanston for appellant.

J E. Taylor, Attorney General, and Aubrey R. Hammett Jr., Assistant Attorney General, for respondent.

(1) The court committed no error in overruling defendant's demurrer at the close of the State's case, or at the close of the whole case, for the reason there was an abundance of substantial evidence to support the information for grand larceny. State v. Bigley, 247 S.W. 169; State v. Denison, 178 S.W.2d 449; State v. Ring, 346 Mo. 290, 141 S.W.2d 57; State v. Schrum, 347 Mo. 1060, 152 S.W.2d 17. (2) The court properly instructed the jury on the crime of grand larceny and did not err in failing to instruct on the crime of embezzlement. 32 Am. Jur., p. 896, sec. 10; p. 960, sec. 56; p. 967, sec. 60; State v. Harrison, 347 Mo. 1230, 152 S.W.2d 161; State v. LaFrance, 165 S.W.2d 624, 146 A.L.R. 529; Fitch v. State, 135 Fla. 361, 185 So. 435, 125 A.L.R. 360; Bonatz v. State, 85 Tex. Crim. 292, 212 S.W. 494; Haley v. State, 20 Okla. Crim. 145, 200 P. 1009; State v. Kennedy, 239 S.W. 869.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Eugene F. Roussin appeals from a judgment conforming with the verdict of the jury, imposing a punishment of two years' imprisonment for the crime of "grand larcency" in that "on the 11th day of August," 1943, he "feloniously did steal, take and carry away" $ 115 lawful money, the property of the City of St. Louis, a municipal corporation. The principal assignments of error in the motion for new trial question the sufficiency of the evidence to make a submissible issue of grand larceny, involving also the failure of the court to instruct on embezzlement. We think appellant is guilty of embezzlement under Sec. 4478, R.S. 1939, and not guilty of grand larceny under Sec. 4456, R.S. 1939. Appellant has filed no brief.

Before taking up the main issue, we mention a complaint that the State's main instruction permitted a verdict of guilty upon a finding that appellant committed the offense "on or about the 11th day of August, 1943, or at any time within three years next before the filing of the information herein" whereas the information charged the commission of the offense "on the 11th day of August," 1943. The better practice so obviously is to have the charge embrace the time expected to be covered and to have the instructions restricted to the time actually established by the evidence that we make no further comment. Reversible error in this respect is not shown by the instant record.

The substance of the issue involving the sufficiency of the evidence in the motion for new trial, as we understand, is that appellant, if guilty, was guilty of embezzlement, not grand larceny, and herein of the failure of the court to instruct on embezzlement. The essential facts of the State's case follow:

Appellant was employed in March, 1942, by the City of St. Louis as an assistant to the Examiner of the Accounts in the Department of the Comptroller of said City and served in that capacity under Mr. Ben Rives, the Examiner of the Accounts, until appellant's resignation on October 1, 1943. A great number of items are collected through the office of the Comptroller and handled through the accounts of which appellant had charge under Mr. Rives. The cash and checks received on behalf of the City in payment would be allocated to the proper account and then turned over to the City Treasurer approximately once a week. Appellant and Mr. Rives were charged with making these collections, it being primarily the duty of the appellant, and it was appellant's duty to account for and deposit the collections with the City Treasurer. An audit was made covering the collections appellant accounted for between July 29, 1943, and August 9, 1943, and it disclosed that $ 12,208.86 was collected and only $ 12,093.86 was accounted for and turned over to the City Treasurer, making a shortage of $ 115. Appellant had made his settlement with the City Treasurer on August 11, 1943, for the period involved. When confronted with the situation brought to light by the audit, appellant admitted he had been taking money from the cash drawer for a year or so and using it in purchasing drinks at downtown taverns. At first he would make good the amount on pay days, but soon discontinued doing so and kept no account of his shortages.

Appellant, for defense, denied stealing or appropriating any of the City's money.

The learned Attorney General and his Assistant argue in a brief exhaustively and ably presenting their position that the judgment should be sustained on the theory (1) appellant merely had the custody and not the possession of the money, or (2) if appellant had the possession, he, at the time he received the money, intended to convert it to his own use and in either event the trespass necessary to sustain a larceny existed. The State relies on authorities like: State v. Kennedy (Mo. App.), 239 S.W. 869[1, 2]; Fitch v. State, 135 Fla. 361, 185 So. 435, 125 A.L.R. 360 (containing an annotation on the effect of the distinction between custody and possession); State v. Harrison, 347 Mo. 1230, 1236[3], 152 S.W. 2d 161, 164[4-7]; State v. La France (Mo.), 165 S.W. 2d 624[2-5], 146 A.L.R. 529 (containing an annotation on the distinction between larceny and embezzlement); and 32 Am. Jur., Tit., Larceny, Secs. 6, 10, 56, 60. We find no fault with the cases cited, or with what was said in State v. Gould, 329 Mo. 828, 835, 46 S.W. 2d 886, 889[2, 3], anent estoppel to deny agency on a trial for embezzlement and hair-splitting distinctions in ascertaining the precise instant of the origin of the criminal intent to convert. These cases correctly expound the law on the facts and issues presented for determination. They recognize the basic distinction between larceny and embezzlement. In larceny the taking of possession is unlawful, a trespass, whereas in embezzlement the taking is lawful and the unlawful conversion subsequently occurs. Harboring a felonious intent to convert at the time of receipt, causes an otherwise honest taking of possession from the owner to become a fraud and a trespass in the event of a subsequent conversion in furtherance of the intent. All difficulties attending distinctions between larceny and embezzlement have not been eliminated by the General Assembly. Making a trespass nonessential to larceny would remove much groundwork underlying discussions found in the books. Our statute on larceny (Sec. 4456, R.S. 1939) leaves the elements of that offense as defined at common law. State v. Jenkins (Mo.), 213 S.W. 796, 797[1]. Embezzlement is purely a statutory offense and much depends upon the wording of the particular statute involved. The cited cases do not involve the statute covering appellant's acts and they are not controlling.

Section 4478, R.S. 1939, defines an embezzlement, so far as sufficient to the instant case, as follows: "If . . . any officer, agent or servant of incorporated cities . . . shall convert to his own use, in any manner whatever, . . . any portion of the public moneys, or any moneys that may have come to him or them by virtue of his or their office or official position, or by virtue of any trust reposed in him or them, . . . every such officer, agent, servant, . . . shall, upon conviction, be punished . . ." as in the case of larceny.

The facts established by the State's evidence bring appellant's acts within these broader than...