State v. Russell
| Decision Date | 08 February 1954 |
| Docket Number | No. 43913,No. 2,43913,2 |
| Citation | 44 A.L.R.2d 617,265 S.W.2d 379 |
| Parties | STATE v. RUSSELL |
| Court | Missouri Supreme Court |
Richard L. Daly and Stanley M. Rosenblum, St. Louis, for appellant.
John M. Dalton, Atty. Gen., John W. Inglish, Asst. Atty. Gen., for respondent.
BOHLING, Commissioner.
George Russell, Jr., appeals from a judgment imposing a sentence of seven years imprisonment for embezzlement. Section 560.260 RSMo 1949, V.A.M.S.
On July 27, 1952, appellant rented a Chevrolet automobile from Hubert C. Metcalf, doing business as the Major Rent-a-Car Company, in the city of St. Louis, Missouri. Prior to the expiration of the agreed twenty-four hour rental period, appellant secured permission to keep the automobile an additional day and return it on the 29th. On July 29th appellant returned the automobile and entered into a new rental agreement for it. Appellant agreed to return the automobile within twenty-four hours orally and in his application for the rental of the vehicle. This time he did not request an extension of the rental period and did not return or offer to return the automobile as he had agreed to do. Appellant was apprehended by the St. Louis Police on August 15, 1952, and, upon questioning, informed the officers he had rented the automobile for twenty-four hours, did not have the money to pay the charges, and did not return it. He also stated he had removed the original license plate, threw it into the Meramec river, and replaced it with a license plate he had stolen off of a parked automobile. The automobile was a 1952 Chevrolet sedan, of the approximate value of $1,750. When the automobile was returned to Mr. Metcalf by the police the rental charges approximated $150. It had been driven 1,273 miles, had been abused and sideswiped in an accident.
Appellant contends only bailments solely for the benefit of the bailor are within Sec. 560.260; and since the instant bailment was for hire (locatio rei), with the parties bargaining at arm's length, no fiduciary relationship was created, and the State failed to make a case.
Embezzlement statutes had their origin in a design to obviate defects in the law of larceny for the misappropriation of another's property without a trespass. The moral turpitude was as great as in cases of larceny. Bazeley's Case, 2 East P.C. 571 et seq.; 20 C.J. 412, nn. 14, 15; 29 C.J.S., Embezzlement, Sec. 4, page 673, nn. 26, 27; 18 Am.Jur. 571, Sec. 2; State v. Gould, 329 Mo. 828, 46 S.W.2d 886, 889. While the enactments are to the same general purpose, there is a wide divergence in the wording of the statutes of the several states, as well as the statutes of a given state as they have existed from time to time in extending the scope of the law so that the more recent enactments embrace practically all bailments.
Section 560.260 provides: 'If any carrier, bailee or other person shall embezzle or convert to his own use * * * any money, goods * * * property * * * or other effects which shall have been delivered to him, or shall have come into his possession or under his care as such bailee, although he shall not break any trunk, package, box, or other thing in which he received them, he shall, on conviction, be punished in the manner prescribed by law for stealing property * * *.'
The quoted provisions are much broader than Sec. 30, p. 288, Laws 1825. Norton v. State, 1836, 4 Mo. 461, 464, dealt with then Sec. 42, p. 179, R.S. 1835 (the forerunner of Sec. 560.260), reading similar to Sec. 560.260, viz.: 'If any carrier, or other bailee, shall embezzle * * * he shall, on conviction, be adjudged guilty of larceny, and punished in the manner prescribed * * *' et cetera. Norton had hired a horse to go from St. Louis to St. Charles and failed to return it the following day in accord with the agreement. The court rejected defendant's contentions that the rule of ejusdem generis applied and only carriers who receive goods in boxes or packages were within the statute, stating: 'In our opinion, the Legislature intended to make it larceny in all bailees to embezzle and convert goods' etc. State v. Broderick, 1879, 7 Mo.App. 19, 21. The author of State v. Grisham, 1886, 90 Mo. 163, 166 (III), 2 S.W. 223, 224(3), without mentioning the Norton or Broderick cases, was of the opinion the section, R.S 1879, Sec. 1322, applied only to common carriers and like bailees under the rule of ejusdem generis; but this construction did not receive the concurrence of the other judges. The section was then changed, so far as material, to read, R.S.1889, Sec. 3551: 'If any carrier, bailee or other person shall embezzle * * *' (italics ours); and in State v. Crosswhite, 1895, 130 Mo. 358, 365, 32 S.W. 991, 993, 51 Am.St.Rep. 571, 575, the court stated the change was evidently to make the statute 'apply to all cases of bailment.'
Appellant stresses observations arguendo in State v. Anderson, Mo., 1950, 232 S.W.2d 909, 911, 912[5, 6], that an embezzlement as a bailee is 'basically predicated upon the existence of the fiduciary relationship.' He says that case is to the effect that a bailment for the bailee's sole benefit is not within the statute and argues that, by stronger reasoning, under a bailment for hire, with the parties dealing at arm's length, no fiduciary relationship arises and only bailments for the bailor's exclusive benefit come within the statute. We do not so understand the Anderson case. 'Common carriers' are expressly named in Sec. 560.260 and such bailments are for hire and not for the sole benefit of the bailor. The general purpose of an embezzlement statute is to reach a violation of some trust or confidence, 29 C.J.S., Embezzlement, Sec. 10b, page 679; 18 Am.Jur. 580, Sec. 19; State v. Cochran, 336 Mo. 649, 80 S.W.2d 182, 184. Webster's New International Dictionary defines 'Fiduciary' as: 'Fiduciary contract is an agreement by which a person delivers a thing to another, on condition that he will return it to him.' 17 C.J.S., Contracts, Sec. 10, page 329, note 59; Bouvier's, Black's, and Ballentine's Law Dictionaries. See 5 Words and Phrases, Return of chattel, p. 59. The trust or confidence violated by appellant was his failure to return the automobile as he had agreed to do.
Appellant also argues that a conviction for embezzlement 'on or about August 1, 1952,' being after the twenty-four hour bailment period, may not stand because the offense would be larceny. Appellant cites Clark and Marshall (1952) on Crimes, pp. 434, 435, 492, where cases under the original and perhaps some present English statutes and early statutes of some of the states are cited. Tunnard's Case (1729), 1 Leach C.C. 255, note (a); Regina v. Haigh (1857), 7 Cox C.C. 403; Commonwealth v. James, 1823, 1 Pick. 375, 18 Mass. 375; 1 Hawk. P.C. Ch. 33, Secs. 5, 7; 2 East P.C. 695; 1 Hale P.C. 504, 505; 4 Black.Comm. 230. Embezzlement at the time of appellant's authorities was a more restricted offense than that defined by Sec. 560.260, being confined to the technical duration of the bailment, which was terminable upon any tortious act of the bailee. A reading of the Missouri embezzlement statutes, including Sec. 560.260, makes manifest the legislative intent to avoid the hair-splitting distinctions of the earlier law and to broaden the scope of said statutes. For instance: Now Sec. 560.260, provided in R.S. 1835, p. 179, Sec. 42, that one, 'although he shall not break any trunk, package' et cetera 'shall, on conviction, be adjudged guilty of larceny, and punished in the manner prescribed' for stealing property, which was not a larceny under appellant's cases. In the re-enactment of Sec. 4552, R.S. 1909, by Laws 1919, p. 254, 'adjudged guilty of larceny, and' was deleted from the section. Section 560.260 by its terms applies to any 'bailee or other person' who embezzles or converts, etc., any chattel 'which shall have been delivered to him, or shall have come into his possession or under his care as such bailee'. An accused who accepts delivery, or comes into the possession or care of the chattel lawfully and thereafter, prior to the discharge of the trust or confidence reposed, embezzles the chattel comes within the wording of the statute. As observed in State v. Gould, 329 Mo. 828, 46 S.W.2d 886, 889, and reasserted in State v. Cochran, 336 Mo. 649, 80 S.W.2d 182, 184, larceny, embezzlement and obtaining money under false pretenses stand on an equal...
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