State v. Stevens
| Decision Date | 13 March 1920 |
| Docket Number | No. 21884.,21884. |
| Citation | 281 Mo. 639,220 S.W. 844 |
| Parties | STATE v. STEVENS. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.
Beverly C. Stevens was convicted of embezzlement, and he appeals. Affirmed.
Fauntleroy, Cullen & Hay, of St. Louis, for appellant.
Frank W. McAllister, Atty. Gen., and Clarence P. Le Mere, Asst. Atty. Gen., for the State.
An indictment preferred by the grand jury of St. Louis county in December, 1914, charged the appellant in two counts with embezzlement; in the first with having unlawfully converted to his own use a certain note for $1,500, the property of one C. C. Sanders; in the second with having unlawfully, etc., as a bailee converted said note. After a removal of the case by change of venue to the circuit court of the city of St. Louis a trial was had, resulting in a verdict of guilty under the second count and a sentence of three years' imprisonment in the penitentiary. Appellant seeks a reversal of this judgment.
The second count of the indictment is as follows:
"And the grand jurors aforesaid, under their oaths aforesaid, do further present that Beverly C. Stevens, on or about the __ day of July, 1913, at the county of St. Louis and state of Missouri, became and was the bailee of a certain right in action and valuable security, to wit, a promissory note for the sum of $1,500, dated the 17th day of August, 1912, executed by Henry Woods, and payable three years after date to the order of B. C. Stevens, said note being of the value of $1,500, the right in action, valuable security, and property of C. C. Sanders, which said right in action, valuable security, and property was delivered to and came into possession and under the care of the said Beverly C. Stevens as bailee as aforesaid of, for and on behalf of C. C. Sanders; and the said Beverly C. Stevens, the right in action, valuable security, and property aforesaid did then and there feloniously and fraudulently embezzle and convert to his own use, without the consent of the said C. C. Sanders, with the felonious and fraudulent intent then and there to deprive the owner, the said C. C. Sanders, of the use thereof; and so the said Beverly C. Stevens, the said right in action, valuable security, and property of the value aforesaid, the property of the said C. C. Sanders, in the manner and form aforesaid fraudulently and feloniously did take, steal, and carry away and convert the same to his own use, against the peace and dignity of the state."
The appellant resided in Clayton, St. Louis county, and was engaged in the real estate and loan business at the time of the alleged offense. In August, 1912, Sanders, the prosecuting witness, purchased from the appellant a note for $1,500, payable on its face to the appellant; the latter indorsed the note and turned it over to Sanders. This note was secured by a deed of trust, which was also at the time turned over to Sanders. After holding the note about 12 months, Sanders took it to the office of appellant and left it there to be sold or taken up. Several months elapsed, and appellant told Sanders from time to time that he was trying to sell the note but was unable to find a buyer. In October, 1914, Sanders discovered that the Creve Coeur Farmers' Bank in St. Louis county had advertised to sell the note at public sale, and on the 14th day of that month it was so sold and he bought it for the sum of $1,082.50. The evidence discloses that in August, 1913, the appellant had taken the note and deed of trust aforesaid and deposited them as collateral security for money advanced to him by the Creve Coeur Farmers' Bank on his personal note. This personal note was renewed from time to time between August, 1913, and October, 1914, and a payment or two made, but each time the note and deed of trust in question were deposited as collateral security by appellant to secure the payment of his own note to the bank. It further appears that prior to October, 1914, appellant made an assignment for the benefit of his creditors, and that the sale of the collateral note by the bank was to satisfy appellant's debt to it. This was the substance of the testimony on behalf of the state. The defendant offered none.
The points stressed by appellant for a reversal are: Defects in the indictment, Improper admission of testimony, and errors in instructions.
Stripped of formal averments required in a charge of the nature here under review, the presence of which is not challenged, the essential allegations of the indictment are that at the time stated the appellant was the bailee of a certain note, describing it, which was owned by one C. C. Sanders; that while said note was so held by the appellant he, without the consent of the owner, converted it to his own use; that his intent in so doing was to deprive the owner of the same; and that in the manner aforesaid appellant did feloniously steal, take, and carry same away, etc.
I. Indictment. The count of the indictment under which the appellant was convicted was based upon section 4552, R. S. 1909. This statute, as we held in State v. Burgess, 268 Mo. loc. cit. 413, 188 S. W. 135, creates two offenses; one for embezzlement as bailee, and the other for converting or making away with money or property as a bailee with intent to embezzle it. The offense as charged in the count under which appellant was convicted is for an actual embezzlement as bailee, and the intent pleaded is nothing more than a defining of the wrongful act with a felonious purpose necessary in any criminal charge. All of the averments essential to charge the offense are embodied therein. It is even more specific than is required under the statute of jeofails (section 5108, R. S. 1909), applicable to indictments for offenses of this character, and from it no difficulty is encountered in ascertaining the nature and cause of the accusation. It follows with exactness as to material averments the form approved in State v. Crosswhite, 130 Mo. 368, 32 S. W. 991, 51 Am. St. Rep. 571, and, free from the defects noted in the Burgess Case, supra, it complies with the, requirements held therein to be necessary in framing a charge of this nature.
A more specific contention as to the insufficiency of the indictment is urged, in that it alleges that the note was made payable to the appellant or his order, but does not aver that it was indorsed by him to Sanders; that on its face the ownership of same was in the appellant, who could not be held to have embezzled his own property. It is insisted in support of this contention that the indictment should have, in addition to the description it contained of the note, the further averments that the note was payable at the office of the appellant, that it bore interest at the rate of 8 per cent, per annum after maturity, that it was secured by a deed of trust of even date therewith, and that the name of the appellant was indorsed on the back thereof. The context of the indictment furnishes a satisfactory answer to the contention as to the allegation of ownership. In addition to the averment that the note was made payable to the appellant or his order, It is alleged that the right of action on said note and the property in same was in C. C. Sanders. This is even more specific than if it had been alleged, as it Is contended should have been done, that the note had been indorsed by the appellant to Sanders. So far, therefore, as concerns the allegation of ownership, it is sufficient to meet the requirements of a pleading of this character and to render the note subject to embezzlement by the appellant.
As to the further description of the note which it is contended should have appeared in the indictment, it will be sufficient to say that it constituted...
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