State v. Wilcox

• Decision Date: 29 June 1915
• Docket Number: No. 18364.,18364.
• Citation: 179 S.W. 479
• Parties: STATE v. WILCOX.
• Court: Missouri Supreme Court

179 S.W. 479

STATE v. WILCOX.

No. 18364.

Supreme Court of Missouri.

June 29, 1915.

In Banc. Appeal from Circuit Court, Stoddard County; E. M. Dearing, Judge.

A. D. Wilcox was convicted of embezzlement, and he appeals. Reversed and remanded.

See, also, 179 S. W. 482, 483.

Mozley & Woody, Fort & Green, and J. W. Farris, all of Bloomfield, for appellant. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for the State.

BLAIR, J.

In the Stoddard county circuit court defendant was convicted of embezzlement and sentenced to three years in the penitentiary, and has appealed. Two other cases against appellant were submitted in Division No. 2 at the same time this case was submitted. In those cases opinions have been handed down in each of which reference is made to this case for the statement of the facts upon which the decisions therein depend. Finding the statement made in the opinion in division to be correct, it will be used (substantially) in this opinion. No change is made which affects the references in the two other cases mentioned.

The amended information described the property defendant was charged with embezzling as "certain money, property, rights in action, valuable securities and effects, a particular description of which is to the prosecuting attorney unknown," to the amount and value of $1,000.

The evidence tended to show that the City Bank of Bloomfield was incorporated in 1900, its stock being practically all owned by George Houck, who died in 1907, leaving his stock to his two sons, George and Rudolph S. Defendant was cashier of the institution during its entire existence. He was a nephew of George Houck, Sr., and was 44 years old at the time of the trial. On May 14, 1912, defendant owed the Bank of Bloomfield, located across the street from the City Bank, a note for $2,500, on which, on the day mentioned, he paid $1,000, delivering his check drawn on the City Bank for that purpose. This check was paid by the City Bank in the "exchange of checks" for that day's business. It was never charged to appellant's account, but (he testified) was carried as a cash item until November 18, 1912, when the City Bank was closed by the bank commissioner. There was also evidence that there were 40 or 50 other checks of the same kind drawn and signed by appellant for sums aggregating $18,000 or $20,000, and paid by the City Bank, none of which had been charged to appellant's account; that defendant brought all these checks from his house and gave them to the bank commissioner subsequent to the closing of the bank; that there was a shortage totaling $78,000; and that defendant admitted he was responsible for it all. There was other evidence that about November 18, 1912, appellant stated that the whole trouble was due to the Bloomfield Mercantile Company, of which he was president and principal owner, and that he claimed that the $2,500 note above mentioned was, in fact, the debt of the mercantile company.

In his testimony appellant specifically denied that he had admitted responsibility for the shortage of $78,000, and denied other admissions, of which there was evidence to the effect that he had collected notes due the bank and appropriated the money. He testified that the shortage in the funds of the City Bank originated in the lifetime of George Houck, Sr., the founder of the institution; that a cash item is one which "is carried in a drawer and represents cash which the bank has paid out and which is not charged up until it is reconverted into cash," and, that the general practice and custom of the City Bank always was to carry more or less cash items; that the $1,000 check was carried as a cash item according to the customary course of the City Bank, and that the then president of the bank, George Houck, Jr., and "all of them" knew it and "knew all that was going on there"; that there was no concealment of the check; that during this time his wife had over $5,000 on deposit with the bank which he was at all times at liberty to use, if necessary, to pay the check; and that he had no intention of embezzling the bank's money. He also testified that George Houck, Sr., in his lifetime knew of what is termed in the evidence "the general shortage," and that the other officers knew of it down to the time the bank closed, and that it was concealed with the knowledge and at the direction of George Houck, Jr. There was testimony for the state to the contrary, though there was evidence of admissions by George Houck, Jr., president of the bank after 1907, which, if made by him, clearly indicated he was aware of the bank's condition and aware that it was due to bad loans and bad management and thought appellant's relation to the family and the gratitude due from him for kindnesses of George Houck, Sr., obligated him to use every effort to keep it concealed.

Appellant contradicted all testimony tending to ascribe to him responsibility for the "general shortage" referred to, evidence of the existence of which was offered to characterize the intent of appellant in respect to his dealings with the $1,000 check to the Bloomfield Bank. During the examination of appellant by his counsel the following occurred:

"Q. Mr. Wilcox, there has been some testimony in this case about a general shortage of the City Bank at Bloomfield, and the amount of it. I will ask you to tell the jury how far back the shortage in the City Bank at Bloomfield began. A. During George Houck, Sr.'s, lifetime. Q. I will ask you to state what the practice and custom had been there with you and Mr. George Houck, Sr., during his lifetime, and the other officials of the bank, with respect to checking money out of the bank and not replacing it.

"Mr. Ward: I object to that as incompetent and immaterial.

"The Court: The objection will be sustained.

"Mr. Mozley: I except to the ruling of the court. I think, your honor, inasmuch as I have objected to all the testimony about a general shortage, that this is competent. The court will remember that I have objected, and he has ruled against me. Now, then, manifestly we would have a right to explain that, and how it came about, and all about it. That is what I now propose to do by this witness.

"The Court: The court is not going to allow that.

"Mr. Mozley: If the court holds that I can't do that, all I can do is make my offer.

"The Court: I don't want to sit here and consume time showing the conduct of other men. There is only one question in this case, and that is the question of whether or not this man embezzled this $1,000.

"Mr. Mozley: That is precisely what I contended when the state was offering their testimony.

"The Court: You can't separate some of these things.

"Mr. Mozley: I will save my exceptions to the ruling of the court."

There was evidence for the state that it was not customary for banks to carry as cash items checks drawn on themselves, except such checks as were received after the close of business for the day, and these were carried until the following morning.

1. The information was not assailed before the trial. It is good after verdict. Section 5115, R. S. 1909.

2. Appellant contends that it was error to admit evidence of any shortage in the bank's assets, except that resulting from the particular transaction which is the foundation of this case. The general rule excluding evidence of other offenses is invoked. There are exceptions to that rule. A vital issue of fact in prosecutions for embezzlement is the intent of the defendant. Other offenses intermixed with that on trial or committed in efforts at concealment or any such as are of a character tending to prove a fraudulent intent in the act under investigation may be shown upon the question of intent. People v. Hatch, 163 Cal. 368, 125 Pac. 907; People v. Rowland, 12 Cal. App. 6, 106 Pac. 428; State v. Foley, 247 Mo. loc. cit. 635, 153 S. W. 1010; Underhill on Criminal Evidence, § 283; Rapalje on Larceny and Kindred Offenses, § 392. To warrant the admission of evidence of other offenses, however, they must fall within the exceptions to the general rule. An examination of the testimony objected to in this connection discloses there was no error in its admission; it being considered in the light of the evidence tending to show that appellant was...