State v. Silva

• Citation: 32 S.W. 1007,130 Mo. 440
• Parties: The State v. Silva, Appellant
• Decision Date: 19 November 1895
• Court: Missouri Supreme Court

32 S.W. 1007

130 Mo. 440

The State v. Silva, Appellant

Supreme Court of Missouri, Second Division

November 19, 1895

Appeal from Cooper Circuit Court. -- Hon. D. W. Shackleford, Judge.

Affirmed.

Charles P. Johnson and Charles T. Noland for appellant.

(1) The circuit court of Cooper county had no jurisdiction to try this cause. Judge H. L. Edmunds had no power, right, or authority to again assume jurisdiction, and his appointment of Judge Dorsey W. Shackleford was null and void. The entire proceedings under Judge Shackleford were coram non judice. State v. Moberly, 121 Mo. 604; State v Hayes, 81 Mo. 574; S. C., 88 Mo. 344; State v Schaffer, 36 Mo.App. 589; State v. Shea, 95 Mo 85; State v. Shipman, 93 Mo. 147; State v. Thomas, 32 Mo.App. 159; State v. Hopper, 71 Mo. 425; State v. Worrell, 25 Mo. 205; Lacy v. Barrett, 75 Mo. 469; Henderson v. Henderson, 55 Mo. 544; Dawson v. Dawson, 29 Mo.App. 521; Gale's Adm'r v. Mitchie, 47 Mo. 326; Goodhue v. People, 94 Ill. 37; Colvin v. Six, 79 Mo. loc. cit. 200; State v. Daniels, 66 Mo. 192. (2) The court's theory, as shown by the admission of testimony and the instructions given, that it was immaterial whether the by-laws authorized the secretary to receive and disburse money belonging to the corporation, if by custom and usage such duties had for some time devolved upon the secretary, even though the by-laws expressly provided that such duties should be performed by the treasurer, was error. State v. Bolin, 110 Mo. 209; State v. Heath, 8 Mo.App. 99; State v. Heath, 70 Mo. 565; Hamuel v. State, 5 Mo. 260; State v. Findley, 101 Mo. 217. (3) The evidence of E. C. Morgan, as to money expressed between February 15 and October 16, 1891, and consigned to the Rainwater-Boogher Hat Company, and belonging to that corporation, was no evidence of money received by Silva belonging to the Rainwater-Bradford Hat Company, and was inadmissible under this indictment. State v. English, 67 Mo. 136; State v. Fay, 65 Mo. 490; State v. Chamberlain, 75 Mo. 382; State v. Horn, 93 Mo. 190; State v. Sharp, 106 Mo. 106. (4) The court erred in refusing to allow defendant to prove the extent of the business done by the Rainwater-Bradford Hat Company, and the amount of the expenses, and that the corporation stock was paid for by estimating an old stock of goods as so much cash money, to wit, $ 100,000, and by estimating old outstanding accounts due the Rainwater-Boogher Hat Company, and the firm of Rainwater-Boogher & Co., aggregating some $ 165,000, as being of the cash value of $ 150,000, when in fact $ 80,000 of these accounts within two wears were charged to profit and loss as worthless, and no evidence as to the others having been paid. (5) The intent to feloniously convert to one's own use and deprive the owner of his property is an essential element of the crime of embezzlement. The instruction offered by defendant and refused by the court correctly stated the law and should have been given. The instructions given by the court entirely ignored this essential element. State v. Reilly, 4 Mo.App. 392; State v. Pratt, 98 Mo. 482; State v. Jennings, 98 Mo. 495; State v. Simpson, 73 N.C. 269; State v. McCollum, 44 Mo. 343; Ridgeway v. State, 41 Tex. 231; 4 Am. & Eng. Encyclopedia of Law, 746; Huntsman v. State, 12 Tex.App. 619.

R. F. Walker, attorney general, Morton Jourdan, assistant attorney general, and C. O. Bishop for the state.

(1) The indictment is framed under Revised Statutes, 1889, section 3549, follows the language of the statute, and is sufficient. State v. Adams, 108 Mo. 208; (2) Judge Shackleford had legal jurisdiction of the cause. State v. Higgerson, 110 Mo. 203, is not authority to the contrary. (3) The instructions given by the court of its own motion were correct statements of the law. The fraudulent intent required by the statute was properly and sufficiently stated. State v. Adams, 108 Mo. 208; State v. Porter, 26 Mo. 201. (4) The refused instructions asked by appellant were rightly refused and the verdict is fully supported by the evidence. See State v. Musick, 101 Mo. 260; State v. Alexander, 119 Mo. 447. (5) It was competent to show by experts who had spent weeks in the examination of the books and accounts of appellant the result of the examination. Benevolent Society v. Lackland, 97 Mo. 137; State v. Findley, 101 Mo. 217. (6) The duties of defendant as secretary were properly shown by evidence of his usual or customary duties.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

The defendant was indicted at the January term, 1894, of the St. Louis criminal court for embezzlement. He was duly arraigned and a plea of not guilty entered.

At the March term, 1894, he filed his affidavit against Judge Edmunds, the judge of that court, whereupon Judge Edmunds made an order reciting that in his opinion no suitable or competent person could or would be chosen or elected as special judge to try said cause, and therefore he ordered said cause to be set down for trial on the second day of April, 1894, and requested Judge Hirzel, the judge of the thirteenth judicial circuit, to hold said court to try said cause to pass upon the application of defendant for a change of venue, should one be presented, and to determine all issues and do all things necessary and proper for the final determination of said cause.

Judge Hirzel appeared on April 2 and Judge Edmunds vacated the bench in pursuance of the order above referred to. Thereupon defendant filed his motion for a bill of particulars, which motion was overruled by Judge Hirzel, and thereupon the cause was, by consent, continued to the next term and was ordered docketed for May 7, 1894, and on the seventh day of May, by consent, the cause was again continued to May 28, on which last mentioned day the parties filed a stipulation continuing the cause until June 18. When Judge Hirzel heard of this last stipulation, he addressed Judge Edmunds the following communication:

"State of Missouri,)

City of St. Louis.)

"In the Criminal Court of the City of St. Louis. (R. S. 1889, Section 4178.)

"To the Hon. H. L. Edmunds, Judge of the Criminal Court:

"The undersigned judge of the thirteenth judicial circuit, respectfully shows and states that he has been heretofore called in by your Honor to try in your court the case of the State of Missouri v. Louis J. Silva, now pending in this court; that the cause aforesaid was called for trial several times while the undersigned was acting as judge in said cause; that all parties announced ready to try said cause on Monday, the twenty-eighth day of May, 1894, and the undersigned duly appeared to try said cause as such judge; that it now appears that without any consent on the part of the under-signed, the attorneys for the state and for the defense agreed by stipulation to continue said cause for trial to Monday, June 18, 1894, or later; that the undersigned, by reason of judicial work in his own circuit, will be, and is, wholly unable to try said cause on June 18, 1894, or at any other time, and he is therefore obliged to refuse, and hereby does refuse, to serve any further as judge in said cause.

"Respectfully submitted.

"Rudolph Hirzel, Judge."

When Judge Edmunds received this communication the record shows he was presiding in said court and the defendant and his counsel and the circuit attorney were present, and thereupon he caused the following order to be made of record:

"It therefore appearing to the court that the Hon. Henry L. Edmunds, judge of this court, is incompetent to hear and try this cause by reason of the fact that the affidavit of said defendant, supported by affidavits of two reputable persons not of kin or counsel for the defendant, has been duly filed, alleging that the judge of this court is so prejudiced against the said defendant that said defendant can not obtain a fair and impartial trial herein; and the court being of the opinion that no suitable or competent person can or will be chosen or elected as special judge to try this cause and determine the issues herein, and the Hon. Rudolph Hirzel, judge of the thirteenth judicial circuit, failing and refusing to hold court and try said cause, as heretofore appointed, notified, and requested so to do, therefore the court doth order that this cause be specially set and docketed for trial on the eighteenth day of June, 1894, and doth appoint, notify, and request the Honorable Dorsey W. Shackleford, judge of the fourteenth judicial circuit of the state of Missouri, to be and appear in our St. Louis criminal court on said eighteenth day of June, 1894, to hold court to try said cause, to pass upon the application of said defendant for a change of venue, should such application be presented to the court, to determine all issues herein, and to do all things as may be necessary and proper for the final determination of said cause in said court."

No exception was saved by appellant at the time to this action of the court.

On June 18, 1894, in accordance with the foregoing order, Judge Edmunds again vacated the bench, and Hon. D. W. Shackleford appeared and took charge of the cause as special judge whereupon appellant filed his application, supported by statutory affidavits, for a change of venue on the ground of prejudice of the inhabitants of St. Louis city, and Judge Shackleford awarded the change of venue and ordered the cause removed to the circuit court of Cooper county; and on the following day appellant, in open court, Judge Shackleford presiding, filed his bond for his appearance before the circuit court of Cooper county on Friday, June 22, 1894, and from day to day, etc. The cause was set for trial in said circuit court of Cooper county on June 22, 1894, but appellant failed to appear and the cause...