State v. Ruznak, 20463.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Sutton
• Citation: 15 S.W.2d 349
• Parties: STATE v. RUZNAK.
• Docket Number: No. 20463.,20463.
• Decision Date: 02 April 1929

15 S.W.2d 349 STATE
v.
RUZNAK. No. 20463. St. Louis Court of Appeals. Missouri. April 2, 1929.

Appeal from St. Louis Court of Criminal Correction; Edward E. Butler, Judge.

"Not to be officially published."

Louis Ruznak was convicted of embezzlement, and he appeals. Reversed, and defendant discharged.

Oliver T. Remmers, William Baer, and Ernest A. Green, all of St. Louis, for appellant.

Albert L. Schweitzer, Pros. Atty., and Charles W. Graves, Associate Pros. Atty., both of St. Louis, for the State.

SUTTON, C.

This is a prosecution for embezzlement. The information charges: "That Louis Ruznak, in the city of St. Louis, on the 12th day of July, 1927, did then and there have, receive, and take unto his possession and under his care certain moneys, to wit, five dollars, lawful money of the United States, and the property of George Morgan, and the said Louis Ruznak the said moneys then and there did embezzle and fraudulently convert to his own use, without the consent of George Morgan, the owner thereof, against the peace and dignity of the state." The cause was tried to a jury. Defendant was convicted, and sentenced to serve a term of one year in the workhouse and to pay a fine of $100, and he has brought the case here by appeal.

The prosecuting witness, George Morgan, testified that some time prior to July 12, 1927, he purchased a Ford sedan, and operated it in the city of St. Louis without a city license or a state license; that he was arrested and gave bond to appear in the city court on July 12, 1927, to answer the complaint of the city for the violation of an ordinance in failing to have a city license for his said automobile; that he appeared in the city court on July 12, 1927; that the defendant approached him there, and asked him what his trouble was. The witness then testified as to what occurred, as follows:

"Q. State what Mr. Ruznak said to you at that time. A. He asked me what my trouble was, and I told him, and he said, `Well, I can fix that up for you; you give me five dollars, and you won't have to worry about it; go on back to work.'

"Q. When you told him what your trouble was, what did you tell him? A. Told him I got arrested for no city license.

"Q. What did he say? A. He said, `I will fix it up for you.'

"Q. Was this man Hales present at that time? A. He was.

"Q. What did you say to Mr. Ruznak? A. He told me to give him $5, and he would fix it up for me.

"Q. Did he ask you for the sum of $5? A. Yes, sir.

"Q. Did he tell you what he wanted that $5 for? A. No; he didn't.

"Q. What did he say? A. He just said, `Give me $5, and I will fix it up for you.'

15 S.W.2d 350

"Q. Did Mr. Ruznak tell you at that time what he intended to do? A. He just told me he would fix it up for me.

"Q. What other statement did he make to you right after that? A. He told me I could go on home, and I needn't be worried about it; that he would fix it up.

"Q. Did you know what he meant when he said he would fix it up? A. He told me he would fix my case up.

"Q. Did you at any time give Mr. Ruznak any money? A. Yes, sir; I did.

"Q. How much did you give him? A. Gave him $5.

"Q. Where did you get this $5 that you gave to Ruznak? A. From my employer.

"Q. Was there any further conversation had after the passing of this $5? A. Only that I could go back to work; that's all.

"Q. What did he tell you he was going to do for that $5? A. He didn't say what he was going to do with it. He said he was going to fix the case for me, and I could go on back to work.

"Q. He did not say what he was going to do with it; stick it in his pocket, or pay it to the court? A. I told you what he said.

"Q. For $5 he said he would fix the case? A. Yes, sir.

"Q. He didn't say anything about court costs, did he? A. I believe he did.

"Q. Was the subject of court costs brought up on July 12th? A. I don't remember.

"Q. Would you say that he did say something about it, or that he did not? A. I don't remember. I don't remember anything about court costs.

"Q. Did Ruznak tell you this $5 was going for court costs? A. I don't remember.

"Q. Will you say definitely `yes' or `no' that he did say so or not? A. I don't remember.

"Q. You didn't pay a penny into court? A. No, sir.

"Q. Or to any court official? A. Not, yet; no, sir.

"Q. Never have at any time? A. No, sir.

"Q. Haven't up to this minute? A. No.

"Q. And Judge Beck paroled you, didn't he?

A. Yes.

"Q. And he paroled you after you told him you paid $5 to Ruznak? A. Yes.

"Q. Did you ever demand this $5 back from Louis Ruznak? A. I have not.

"Q. Have you made any demand up to the present time for the return of this $5 from Ruznak? A. I have not.

"Q. Did he say anything to you as to what he was going to do with the $5, or what it was for? A. I don't think he did."

The records of the city court show that, in the prosecution against Morgan for operating his automobile without having obtained a license therefor, a judgment was rendered against him by default, on August 2, 1927, whereby he was adjudged to pay a fine of $10 and costs, and that he was afterwards paroled. Judge Beck, produced on behalf of the state, testified that he granted this parole because, when he inquired of Morgan why he did not appear in court, he related that he had paid a sum of money to Ruznak and relied on him to take care of his case.

Morgan also testified that, at the time he paid the $5 to the defendant, his employer, John F. Hales, was with witness, and that they were both standing together, and he borrowed the $5 from Hales, and paid it to defendant in Hales' presence.

John F. Hales, produced by defendant, testified as follows:

"Q. During the month of July, of this year, what relation did George Morgan have to your business? A. He was working for me.

"Q. Do you recall coming down to the Municipal Courts Building on July 12th of this year with George Morgan? A. Yes, sir.

"Q. Do you know what he was charged with? A. Yes; not having a city license.

"Q. Did you see any one approach Morgan at any time and ask him what his trouble was, or why he was down here in court? A. Yes.

"Q. Did Morgan at any time ask you for any money? A. Yes; he asked me to lend him $5.

"Q. What for? A. To give that fellow to fix his case.

"Q. What did you do then, when he asked you for $5? A. I gave it to him.

"Q. What did he do then? A. He gave it to the fellow, and the fellow said he would fix the case, and for Morgan to go on home, and he would fix the case for him.

"Q. Do you know the name of the man to whom Morgan gave the $5? A. No, sir.

"Q. I will ask you if this gentleman here, Louis Ruznak, the defendant in this case, is the man to whom Morgan gave that $5? A. That is not the man.

"Q. And you were with Morgan at the time? A. Yes, sir.

"Q. Are you absolutely positive that this man Ruznak is not the man to whom Morgan gave the $5? A. Yes, sir."

Defendant testified that he never saw Morgan on the 12th day of July, 1927, that Morgan never at any time handed him $5 to fix a case, and that he never saw Morgan at any time until he saw him at the taking of depositions in this case. It was also shown that Morgan received a police summons to appear in the court of criminal correction to answer a charge of having operated his automobile without a state license therefor, and Morgan testified that he also gave defendant $5 to fix that case, and that this transpired some time after the arrangement was made with defendant relative to the city case. It appears that no information was ever filed or warrant issued in the state case, and there seems to be no controversy concerning the $5 paid defendant on account of that case, and the circumstance need not be further noticed.

15 S.W.2d 351

Defendant urges here the insufficiency of the information. The state bottoms the prosecution on section 3329, R. S. 1919, and urges the sufficiency of the information under said section, which provides as follows: "If any carrier, bailee or other person shall embezzle or convert to his own use, * * * any money, goods, rights in action, property or valuable security or other effects which shall have been delivered to him, or shall have come into his possession or under his care as such bailee, * * * he shall, on conviction, be punished in the...