State v. Thompson

• Decision Date: 05 March 1900
• Citation: 155 Mo. 300,55 S.W. 1013
• Parties: STATE v. THOMPSON.
• Court: Missouri Supreme Court

55 S.W. 1013

155 Mo. 300

STATE v. THOMPSON.

Supreme Court of Missouri, Division No. 2.

March 5, 1900.

EMBEZZLEMENT—INSTRUCTIONS—EVIDENCE — SUFFICIENCY—PRINCIPAL AND AGENT— TIME TO REFUND—EFFECT.

1. The court not having instructed that any presumption of guilt arose from defendant's leaving the state, failure to instruct as to defendant's flight was not error.

2. The defendant, who had organized a collection agency, received for collection certain claims in favor of a dry-goods company. Some of these he reduced to judgment, and at different times collected sums on them aggregating $428.63. Of this amount he turned over to the company $130.63, and in his reports to it concealed the receipt of the balance. Held, that the evidence was sufficient to sustain a conviction.

3. The relation of debtor and creditor is not substituted for that of principal and agent by according to an embezzling agent time to make good his shortage, so that such agent may not afterwards be indicted on his failure to refund.

4. Evidence that defendant was a graduate of the law department of Michigan University, had been admitted to practice in Illinois, Texas, and the federal courts at Chicago, and that he had represented various insurance companies for four or five years, coupled with the jury's opportunity to observe him on the witness stand, is sufficient to sustain a finding that he was over 16 years of age.

5. Statements by the court of the grounds on which evidence is admitted or excluded do not constitute oral instructions to the jury, or expressions of opinion on the evidence amounting to error in a criminal trial.

6. On demurrer to evidence, testimony that all relations between the defendant and his principal began within less than three years is sufficient to show that the embezzlement charged in the indictment was not barred by a three-year statute of limitations.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Andrew I. Thompson was convicted of embezzlement, and he appeals. Affirmed.

Dodge & Mulvihill, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

GANTT, P. J.

At the October term, 1898, of the circuit court of the city of St. Louis an indictment was found against the defendant, charging him with the embezzlement of $289 from the William Barr Dry-Goods Company, a business corporation. The defendant was duly arraigned, and entered his plea of not guilty. The evidence disclosed these facts: The defendant graduated in law at the University of Michigan, Ann Arbor. He was born at West Bay City, Mich., where his parents resided at the time of the commission of the alleged offense. After receiving his diploma at the law school, he went to Chicago, where he remained four or five years, leaving there for Texas. The record does not state how long he remained in Texas, but, after leaving there, he was engaged in selling the stock of a building and loan association of St. Louis. In May, 1897, he organized the Surety Law & Collection Company, and had his office in the Allen Building, at Fifth and Market streets, St. Louis, Mo. Defendant was never admitted to practice law in this state. The Surety Law & Collection Company was not a corporation. Its membership consisted of Charles W. Gottschalk and the defendant. In August, 1897, Mr. Wyatt purchased the interest of Mr. Gottschalk, who at that time retired. Wyatt remained with the firm but a short time, when he also retired therefrom. During the fall and summer of 1897, the William Barr Dry-Goods Company placed in the hands of the defendant for collection a number of claims against divers citizens of St. Louis. In addition to the claims of the William Barr Dry-Goods Company, the defendant obtained for collection six or eight thousand dollars' worth of claims of like character from different firms in St. Louis against persons residing in that city. Among those received from the William Barr Dry-Goods Company were accounts against David I. Field, Mary L. Crehon, John Slaughter, Hugh Gonigle, ____ Clark, and David Bailey. Some of these claims the defendant reduced to judgment, and from time to time collected certain amounts upon them. The amounts so collected in the aggregate are as follows: Field, $116; Crehon, $97.63; Slaughter, $40; Gonigle, $75; Clark, $40; Bailey, $60. Of these several amounts the defendant paid to the William Barr Dry-Goods Company $130.63, leaving a balance of $298, being the amount described in the indictment which he failed to turn over to them. There was an oral contract between the William Barr Dry-Goods Company and the defendant, by which he was to receive 10 per cent. of all amounts collected. In the early part of 1898, the dry-goods company sent out statements to the...