State v. Russell, No. 43913

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM; PER CURIAM
Citation44 A.L.R.2d 617,265 S.W.2d 379
Decision Date08 February 1954
Docket NumberNo. 43913,No. 2

Page 379

265 S.W.2d 379
45 A.L.R.2d 617

No. 43913.
Supreme Court of Missouri, Division No. 2.
Feb. 8, 1954.
Motion for Rehearing or for Transfer to Court En Banc Denied
March 8, 1954.

Richard L. Daly and Stanley M. Rosenblum, St. Louis, for appellant.

Page 380

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.

Page 381

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...

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15 cases
  • State v. Scofield, 2
    • United States
    • Court of Appeals of Arizona
    • March 22, 1968
    ...§ 1, at 549; 29A C.J.S. Embezzlement § 2, at p. 4. The gist of the crime of embezzlement is a breach of trust. State v. Russell, 265 S.W.2d 379, 44 A.L.R.2d 617 (Mo. [7 Ariz.App. 312] Page 781 1954) (car-rental case); 26 Am.Jur.2d Embezzlement § 3, at 551--52; 29A C.J.S. Embezzlement § 10b.......
  • Thorne v. Thorne, 48752
    • United States
    • United States State Supreme Court of Missouri
    • November 13, 1961
    ...a verdict to see if it can find a reasonably clear intent expressed therein, though perhaps inartfully expressed. State v. Russell, Mo., 265 S.W.2d 379, 44 A.L.R.2d 617; Shuff v. Kansas City, 221 Mo.App. 505, 282 S.W. 128; 89 C.J.S. Trial Sec. 496, pp. Section 510.230 RSMo 1959, V.A.M.R. an......
  • Wolfe v. Harms, 51641
    • United States
    • United States State Supreme Court of Missouri
    • March 13, 1967
    ...242 S.W. 140, 143(7); and the verdict expresses the clear intent of the jury without ambiguity or uncertainty, State v. Russell, Mo., 265 S.W.2d 379, 382(7), a quality not present in the faulty verdict in Thorne v. Thorne, Mo., 350 S.W.2d Page 214 754, 756, which the trial court attempted t......
  • State v. Bright, 43850
    • United States
    • United States State Supreme Court of Missouri
    • June 14, 1954
    ...Those here shown to have been taken by him obviously fitted into his preconceived plans. In the recent case of State v. Russell, Mo.Sup., 265 S.W.2d 379, 381, we said: '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......
  • Request a trial to view additional results

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