State v. Shour

• Decision Date: 22 May 1906
• Citation: 196 Mo. 202,95 S.W. 405
• Parties: STATE v. SHOUR.
• Court: Missouri Supreme Court

95 S.W. 405

196 Mo. 202

STATE v. SHOUR.

Supreme Court of Missouri, Division No. 2.

May 22, 1906.

1. EMBEZZLEMENT—INFORMATION—PROOF AND VARIANCE.

Where defendant was charged with embezzlement committed while secretary of a building and loan association, the fact that the information charged the embezzlement of a specified sum of money on a certain date from the association did not limit the state to proof of the taking of such fund, nor preclude it from showing all of the transactions of defendant while secretary of the association and the receipt of different amounts than that charged, at various times during the period of three years prior to the filing of the information and not accounted for.

2. SAME—STATUTES—CONSTRUCTION.

Rev. St. 1899, § 1374, declares that any officer of any building and loan association who shall use or dispose of any part of its moneys, etc., unless duly authorized or otherwise than in the regular and legitimate business of the corporation, shall be guilty of a misdemeanor. Section 1912 provides that, if any officer, agent, etc., of any incorporated company shall embezzle or convert to his own use with intent to embezzle or so convert without the assent of the master or employer, any money, etc., belonging to any other person which shall come into his possession or under his care by virtue of his employment, he shall be punished as prescribed for stealing property of the kind or value of the article so embezzled. Held, that section 1374 should be construed as applying only to the wrongful use of the funds of a building association by its officers, and did not preclude the prosecution of a secretary of such an association for the embezzlement of its funds wrongfully taken and converted to his own use, under section 1912.

3. SAME—INSTRUCTIONS.

Where, in a prosecution of the secretary of a building and loan association for embezzlement, there was evidence that defendant's personal clerk handled the funds of the association as well as defendant, and the court charged, at defendant's request, that if some person other than defendant took the money charged to defendant, without his knowledge and consent, defendant would not be guilty, it was not error to charge the converse of such proposition that, if the defendant or another, with his knowledge and consent, fraudulently converted to his own use or the use of such other person money belonging to said association which came into defendant's care or under his control by virtue of his office, with the fraudulent intent then and there on the part of defendant to convert the money to his own or such other person's use, without the assent of the association, he was guilty.

4. SAME—TIME.

In a prosecution for embezzlement, it was proper to charge that it was not necessary, in order to convict defendant of embezzlement of $30 or more, for the state to prove that such amount was taken at the same time or on the same day, but that, if defendant formed a design to embezzle and convert money belonging to the association by which he was employed, and in pursuance of such design did, within three years before the filing of the information, fraudulently embezzle and convert to his own use money belonging to the association to the amount of $30 or more, that was sufficient.

5. CRIMINAL LAW — VERDICT — RESPONSE TO INFORMATION.

Where an information contained but one count and charged the offense of embezzlement in the approved form, a verdict reciting that "we, the jury find the defendant guilty as charged in the information," and assess his punishment at two years in the state penitentiary, was a sufficient response to the offense charged.

6. WITNESSES—COMPETENCY—ATTORNEYS.

In a prosecution for embezzlement, an attorney in the case was competent to testify to the loss of certain books, in order to lay a foundation for secondary evidence.

7. CRIMINAL LAW—VENUE—PROOF.

Where, in a prosecution for embezzlement, it was shown that defendant resided in L. county, where the prosecution was instituted, that the business of the association against which the embezzlement was committed was transacted in that county, and that various payments of money were made to defend in L. county for which he failed to account, the evidence was sufficient to warrant a finding that the offense was committed in that county.

8. SAME—REQUESTED CHARGE—REFUSAL.

Where, in a prosecution for embezzlement, the instructions given fully presented the law on every phase of the case to which testimony was applicable, in a manner extremely favorable to defendant, the refusal of other requested charges made by defendant was not error.

9. EMBEZZLEMENT—EVIDENCE.

In a prosecution for embezzlement against a secretary of a building and loan association, evidence held sufficient to sustain a conviction.

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

A. P. Shour was convicted of embezzlement, and he appeals. Affirmed.

This cause is here upon appeal by the defendant from a judgment of conviction in the Livingston county circuit court at its May term, 1905, upon an information filed by the prosecuting attorney charging the defendant with the embezzlement of money belonging to the Farmers' Loan & Building Association, a corporation incorporated under the laws of the state of Missouri in 1887, and doing business in Chillicothe, Livingston county, Mo., at the time of the trial. This prosecution and judgment is predicated upon the following information by the prosecuting attorney; omitting formal parts, it is as follows: "Comes now Frank S. Miller, prosecuting attorney within and for the county of Livingston, state of Missouri, and informs the court on his official oath that A. P. Shour, on or about the 29th day of December, 1903, at the said county of Livingston, state of Missouri, being then and there an officer, to wit, secretary of the Farmers' Loan & Building Association, a corporation duly incorporated, organized and having an office in the city of Chillicothe, Mo., and doing business under and by virtue of the laws of the state of Missouri, the said A. P. Shour, not being then and there a person under the age of sixteen years, did then and there, by virtue of such office as secretary aforesaid, have, receive and take into possession and under his care a certain sum of money, to wit, one hundred dollars lawful money of the United States of the value of one hundred dollars, which said money and property then and there belonged to and was the property and money of the Farmers' Loan & Building Association, and the said A. P. Shour, the said money and property, did then and there unlawfully, fraudulently and feloniously embezzle and convert to his own use without the assent of the said Farmers' Loan & Building Association, the owner of the said money and property aforesaid, and the said A. P. Shour, the money and property aforesaid, in the manner and by the means aforesaid, did unlawfully, fraudulently and feloniously, steal, take and carry away against the peace and dignity of the state."

The testimony upon the trial, on the part of the state, developed substantially about this state of facts. That it was the duty of the secretary, made so by the constitution of the association, to receive the monthly dues of the stockholders on their shares of stock and all other money paid to the association and pay the same over to the treasurer of the association. It had, however, been the custom of the association, through its board of directors, for a long time prior and at the time of the filing of the information in this case, to require the secretary to deposit the money collected by him from all sources in the bank with which the association kept its bank account to the credit of the Farmers' Loan & Building Association. When the money of the association was deposited with the bank, it could only be paid out by order of the board of directors by a warrant drawn on the treasurer, signed by the president of the board and attested by the secretary. Under this method no officer of the association, except the secretary, received, collected, or handled the money belonging to the company, prior to its being deposited in the bank. The defendant had in the office for a number of years, and at the time he was charged with embezzlement, a lady who acted as his private clerk. This clerk had authority from the defendant to sign his name to receipts for money on the stockholders' passbooks for monthly dues paid by them to the secretary, also to indorse checks made payable to the order of the defendant as secretary. This clerk assisted the defendant in keeping the books of the association and in making out monthly reports to the board of directors. These reports were made monthly and purported to contain a statement of all moneys collected and paid out during the current month. The clerk also assisted in making out the semiannual sworn statement required by the law to be made to the state supervisor of building and loan associations.

The board furnished the secretary an office and paid him an annual salary of $250. There was in the office of the secretary a large safe belonging to the association. This safe had a combination lock and on the inside was a drawer with a lock. The defendant, alone, knew the combination and carried the key to the inside drawer. In this safe the books and papers of the association were kept. The method of receiving money from stockholders for monthly dues and from other sources was practically as follows: When a stockholder brought in his passbook to pay his dues, either the defendant or his clerk would receive the money and write in the passbook the amount paid opposite the month or months paid for and opposite this credit the name of the secretary. If the stockholder did not have his book, and desired to pay his monthly dues, the clerk or the defendant would give a receipt to the party paying for amount paid. The money thus received from day to day...