State v. Thompson

• Decision Date: 31 May 1898
• Citation: 46 S.W. 191,144 Mo. 314
• Parties: STATE v. THOMPSON.
• Court: Missouri Supreme Court

46 S.W. 191

144 Mo. 314

STATE v. THOMPSON.

Supreme Court of Missouri, Division No. 2.

May 31, 1898.

CRIMINAL LAW — CONVICTION OF EMBEZZLEMENT UNDER CHARGE OF LARCENY — CONSTITUTIONAL LAW.

1. Where a person was indicted for grand larceny, and the evidence showed that the crime was embezzlement (if anything), it was proper to instruct the jury on that theory, and the conviction for embezzlement is valid, as especially provided for by Rev. St. 1889, § 3947.

2. Rev. St. 1889, § 3947, in so far as it provides that a conviction of embezzlement may be had under an indictment for larceny, is not in violation of Const. Bill of Rights, § 10, providing that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him, since the crime of embezzlement embraces all the elements of larceny except the taking, and is a crime of a lesser degree.

3. A statute will not be declared void because violative of the constitution, unless its unconstitutionality appears beyond a reasonable doubt.

Gantt, P. J., dissenting.

Appeal from Hannibal court of common pleas; Reuben F. Roy, Judge.

A. R. Thompson was convicted of embezzlement, and he appeals. Affirmed.

D. H. Eby, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

The defendant was convicted in the Hannibal court of common pleas of embezzlement, and his punishment fixed at three years' imprisonment in the penitentiary under a count in an indictment charging him with grand larceny. He appealed.

There were two counts in the indictment. The first was for grand larceny, and the second for embezzlement. The second count was dismissed. The first count, under which the conviction was had, charged that defendant, on the 17th day of September, 1895, in Mason township, in the county of Marion and state of Missouri, did then and there $300 in lawful money of the United States, of the value of $300, of the personal property of one Fletcher Buckner then and there being, unlawfully steal, take, and carry away, against the peace and dignity of the state. At the time of the commission of the alleged offense defendant lived at Hannibal, Mo., and was engaged in the insurance business, representing, among other companies, the New York Life. One Gabe Buckner had taken out a policy of life insurance in said company in favor of his wife, Fletcher Buckner, for $1,000. Gabe Buckner died, and the defendant represented the company in the settlement with Mrs. Buckner for the insurance. On the 15th day of September, 1895, defendant received from said company a draft in settlement of said insurance for the sum of $995.50, which was payable to her. This draft she indorsed, and at her request defendant went to the German-American Bank in Hannibal and received the money on it from U. G. Osborne, the cashier. After defendant received the money, he drove out in a buggy to Mrs. Buckner's place of residence, and called to her, saying, "I have come to pay that claim." She then went out to the buggy, and defendant took the package out of his pocket, opening it sufficiently for her to see that there was money in it, and handed it to her, remarking at the time, "I bet this is more money than you ever had in your life before." He then asked her what she was going to do with it, and she told him she was going to put it in the bank. Mrs. Buckner was an illiterate woman, and unable to count the money, and on her way to the German-American Bank to deposit it she met an acquaintance by the name of Michiltree, and asked him to count it for her, which he did, and found there were only $700 in the package. She did not know up to this time how much money was coming to her upon the policy, but upon going to the bank, and handing the money to the cashier, Osborne, who counted it, and found only $700 in the package, informed her that there ought to be $1,000, and asked her if she had not taken some out of the package. She had not done so. Osborne, the cashier, testified that when he paid the money to the defendant on the draft he gave him $1,000, including two bills of $100 each. About noon on the same day that defendant paid the money to Mrs. Buckner he boarded a train for St. Louis, but was arrested on the way at Troy, Mo., on a telegram. Upon being searched, it was found that he had two $100 bills and about $80 in smaller denominations upon his person. Defendant denied having taken the money from the package. He stated that while in his room in the morning before he took the money to Mrs. Buckner he took the two $100 bills out of the package, and placed in their stead $200 in bills of smaller denominations. The court, of its own motion, gave the following instruction to the jury, over the objection of defendant: "(2) If the jury find, from the evidence in the cause, beyond a reasonable doubt, that at any time within three years prior to the 24th day of September, 1895, in Mason township, in Marion county, Missouri, the defendant delivered to Fletcher Buckner a draft for money payable to said Buckner, and that said Buckner indorsed said draft, and delivered it to defendant for collection for said Buckner, and that the defendant collected said draft, and received the amount of the same on said draft from the German-American Bank; and if the jury further find that the defendant willfully converted any portion of the money so received by him on said draft to his (the defendant's) own use, and that said money, so converted to his own use, was the lawful money of the United States, and was of the value of more than $30, and was the property of said Buckner, and that said money was so converted to the defendant's own use, with the intent, on defendant's part, to permanently deprive said Buckner of her said property without said Buckner's consent, and without any honest claim or belief on defendant's part that he was lawfully entitled to said money but for the purpose of dishonest gain, — then the jury will find the defendant guilty of embezzlement of property of the value of more than $30, under the first count of the indictment, and assess his punishment at imprisonment in the penitentiary for a period of not less than two years and not more than five years." The defendant is not represented in this court, but in the motion for a new trial filed by counsel who appeared for him in the trial court the point was made, among others, that the court committed error in giving this instruction. The other points we think unworthy of consideration.

The only question, then, is whether, under section 3947, Rev. St. 1889, a person can be indicted for grand larceny and convicted of embezzlement under the same indictment, by reason of the provisions of that section which provide that upon an indictment for larceny the defendant may be convicted of embezzlement, and vice versa. The correctness of this instruction depends upon the...