State v. Watkins
| Decision Date | 18 October 1935 |
| Docket Number | No. 33988.,33988. |
| Parties | THE STATE v. EARL WATKINS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Fred J. Hoffmeister, Judge.
AFFIRMED.
Cullen Coil and Patrick H. Cullen for appellant; Cullen, Fauntleroy & Edwards of counsel.
(1) The judgment below should be reversed and the defendant discharged because there was a total failure of proof to establish either a conversion or a felonious intent. State v. Britt, 278 Mo. 514; State v. Cunningham, 154 Mo. 178; State v. Hurley, 234 S.W. 820; State v. Peck, 299 Mo. 454. (2) The relation between the defendant and the Davis Realty Company was that of debtor and creditor, and the defendant had no relation, in his individual capacity, with the prosecuting witness. State v. Brown, 171 Mo. 477; United States v. Mason, 218 U.S. 517; Clark v. State, 61 Tex. Crim. Rep. 539, 135 S.W. 575; Jackson v. State, 2 Ala. App. 226, 57 So. 110; State v. Adams, 108 Mo. 208; Miller v. State, 16 Neb. 179, 20 N.W. 253; State v. Clayton, 15 Pac. (2d) 1057; Sterritt v. State, 50 N.J. 475, 14 Atl. 746; People v. Hurst, 28 N.W. 839; People v. Bauman, 63 N.W. 516; Williamstown Creamery Assn. v. American Surety Co., 218 N.W. 474; Christner v. State, 257 Pac. 330; State v. Carmean, 126 Iowa, 291, 102 N.W. 97. Cases under Point 1. (3) There was no fiduciary relation proved to exist between the defendant and the prosecuting witness, nor is the testimony sufficient to prove that defendant was a "servant or agent." Ballew v. State, 11 Okla. Crim. Rep. 598, 149 Pac. 1070; Schoenrock v. State, 193 Ind. 580, 141 N.E. 351; Weber v. State, 208 N.W. 923, 45 A.L.R. 928; McNish v. State, 88 Ga. 499, 14 S.E. 865; Reg. v. Cosser, 13 Cox C.C. 187; Reg. v. Walker, 8 Cox C.C. 1; Hinds v. Territory, 8 Ariz. 372, 76 Pac. 469; 2 Wharton's Criminal Law, p. 1578, sec. 1261; Brewer v. State, 83 Ala. 113, 3 Am. St. Rep. 693, 3 So. 816; Griffin v. State, 4 Tex. App. 390; Chanock v. United States, 50 App. D.C. 54, 11 A.L.R. 799, 267 Fed. 612. (4) The proof that the defendant, as vice president of a corporation, received a draft payable to said corporation and endorsed the same is insufficient to establish embezzlement of the proceeds, and no testimony other than the receipt and endorsement of the draft was produced, hence there is a total failure to prove embezzlement of the proceeds of the draft. State v. Peck, 299 Mo. 462; State v. Bacon, 170 Mo. 163; State v. Fischer, 249 S.W. 49; State v. Sheets, 289 S.W. 554; State v. Castleton, 255 Mo. 210; State v. Rosefelt, 184 S.W. 905; State v. Mispagel, 207 Mo. 557. (5) Evidence that the draft was deposited to the credit of E. Davis Realty Company, Syndicate No. 6, was improperly admitted because there was no testimony tending to prove that said draft was deposited by defendant personally or by his direction, and the authenticity of the "rubber stamp" endorsement was not proved by any testimony. Hare v. Edwards, 104 Mo. App. 213; Bolles v. Harding, 201 Mass. 103, 87 N.E. 481; 8 C.J., p. 1006, sec. 1310. (6) The admission of the testimony of Ehrenberg that one Hudson was an employee of the Davis Realty Company was irrelevant and incompetent, and what Hudson stated to him about employing lawyers and filing petition claiming the Owsley notes was hearsay and constitutes reversible error. Hopt v. People of Utah, 120 U.S. 430, 30 L. Ed. 708; Waldron v. Waldron, 156 U.S. 361, 39 L. Ed. 453; Throckmorton v. Holt, 180 U.S. 552, 45 L. Ed. 663; Shepard v. United States, 290 U.S. 96; Diaz v. United States, 223 U.S. 442; Motes v. United States, 178 U.S. 458. (7) The statement of counsel that "the defendant has not presented any evidence to show what use was made of the money" and other related statements was a reference to the failure of the defendant to testify, because "what use" was made of the money was a matter the jury would conclude was peculiarly within the knowledge of the defendant and therefore understood that the reference was to the defendant's failure to testify. State v. Pierson, 56 S.W. (2d) 120; Monroe v. Railroad Co., 279 Mo. 644; N.Y. Central Railroad Co. v. Johnson, 279 U.S. 314, 73 L. Ed. 706; State v. Snyder, 182 Mo. 523; State v. Shuls, 329 Mo. 253; State v. Watson, 1 S.W. (2d) 841; State v. Drummins, 274 Mo. 644; State v. Weaver, 165 Mo. 13.
Roy McKittrick, Attorney General, Gilbert Lamb, John W. Hoffman, Jr., and Drake Watson, Assistant Attorneys General, for respondent.
(1) The evidence in this case was sufficient to sustain a verdict of conviction for embezzlement. 13 C.J. 237; Robertson v. Vandeventer, 152 Pac. 110; State v. Obuchon, 159 Mo. 260; Noren v. American School of Osteopathy, 2 S.W. (2d) 220; State v. Martin, 230 Mo. 697; State v. Ross, 312 Mo. 524; State v. Fluesmier, 318 Mo. 803; State v. Kennedy, 239 S.W. 869; State v. Pratt, 98 Mo. 490; State v. Cunningham, 154 Mo. 179; State v. Lentz, 184 Mo. 240; State v. Britt, 278 Mo. 514; State v. Peck, 299 Mo. 461; State v. Hurley, 234 S.W. 823. (2) Proof of embezzlement from either of the Ehrenbergs was sufficient to sustain a conviction. State v. Hedgpeth, 278 S.W. 740. (3) The endorsement on and deposit of the cashier's check was shown to have been made and known by the defendant. City of Maplewood v. Johnson, 273 S.W. 239. (4) There was no error in the admission of evidence concerning one Hudson. State v. Isaacs, 187 S.W. 22; State v. Woodward, 182 Mo. 391. (5) The argument of the assistant circuit attorney was not error and, if so, it was fully cured by rebuke from the court. Sec. 3693, R.S. 1929; State v. Brugioni, 7 S.W. (2d) 262; State v. Steele, 217 S.W. 80; State v. Ruck, 194 Mo. 416; State v. Hughes, 258 Mo. 264; State v. Greer, 12 S.W. (2d) 87; State v. Taylor, 134 Mo. 109; State v. Larkin and Harris, 250 Mo. 218.
Appellant was charged, by an indictment, in the Circuit Court of the City of St. Louis, Missouri, with the crime of embezzlement. The indictment alleged that appellant, on May 14, 1931, as the agent and servant of William and Grace Ehrenberg, embezzled the sum of $8720. Upon a trial he was found guilty and the jury, by their verdict, assessed a punishment of five years' imprisonment in the penitentiary. From the sentence imposed he duly appealed.
The principal point upon which a reversal of the judgment is sought is, as appellant contends, that the evidence failed to establish an essential element of the crime as charged, that is, the State failed to prove appellant to have been the agent or servant of the Ehrenbergs. It is contended that the evidence showed the Davis Realty Company, with which company appellant was connected, was the agent of the Ehrenbergs.
William and Grace Ehrenberg were husband and wife. They purchased a four-family apartment building at 6737 Plymouth Street in the city of St. Louis, Missouri. This property was encumbered, at the time of the purchase, by a deed of trust in the sum of $8500, which had been negotiated by the Laclede Bonding Company. The Ehrenbergs had the cash on hand to pay this encumbrance, but the holder of the deed of trust, the Metropolitan Loan Company, was unwilling to accept the amount of the loan and accrued interest because it was considered a good loan and was not due for fourteen years. The Ehrenbergs were unwilling to pay a bonus to have the debt discharged.
Appellant and the Ehrenbergs were not personally acquainted prior to this transaction. Appellant obtained information of the fact that the Ehrenbergs desired to pay the loan on this property. Thereafter, on May 14, 1931, he went to the Ehrenberg home and introduced himself as Earl Watkins from the Davis Real Estate Company. He also told the Ehrenbergs that a Mr. Heims, an uncle of appellant, had sent him to see them. Watkins, according to the evidence of the Ehrenbergs, informed them that he could pay off the loan in ten days without the bonus if they would let him have the money. The Ehrenbergs at first refused, saying there was no use because they had tried and failed. Watkins is alleged to have told the Ehrenbergs that a Mr. Ford, whom he well knew, was the vice president of the Franklin American Bank and also a director of the Metropolitan Loan Company and he, through Mr. Ford, could handle the situation. Mrs. Ehrenberg then signed a check in blank, on the South Side Lafayette Bank, where the money was on deposit, and gave it to Mr. Ehrenberg with instructions to go and consult Mr. Hoeffel, a relative, and if Mr. Ehrenberg and Mr. Hoeffel thought Mr. Watkins could arrange to pay off the deed of trust to give him the money. Mr. Ehrenberg and appellant then left the home and went to the car of appellant where they found Mr. Heims. The three proceeded to the bank, first stopping for Mr. Hoeffel who was at work. From there all four went to the South Side Lafayette Bank. We learn from the evidence that Mr. Hoeffel also informed appellant that it would be impossible to pay off the loan without paying the bonus. Watkins again assured them that he knew he could do so. At the bank Ehrenberg and Hoeffel agreed to turn over the money to Watkins. Hoeffel, who seemed to be the spokesman, asked the cashier for a cashier's check. He thereupon turned to Watkins and asked who should be named as payee in the check and appellant answered, "E. Davis Realty Company." The four men then went to the office of the Davis Realty Company. There Ehrenberg gave Watkins the cashier's check for $8720 in exchange for a receipt which read as follows:
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