State v. Wise

• Decision Date: 31 January 1905
• Citation: 84 S.W. 954,186 Mo. 42
• Parties: STATE v. WISE.
• Court: Missouri Supreme Court

84 S.W. 954

186 Mo. 42

STATE v. WISE.

Supreme Court of Missouri, Division No. 2.

January 31, 1905.

EMBEZZLEMENT — PROSECUTION — EVIDENCE — SUFFICIENCY — ADMISSIBILITY.

1. Rev. St. 1899, § 1918, makes it embezzlement for any officer of any benevolent association to convert moneys that come to him by virtue of his office. Held, that an indictment under the statute alleging that a certain society was a benevolent organization, and defendant the secretary thereof, and that by virtue of his office he received and took into possession a specified sum of money, and feloniously embezzled it, without the consent of the organization, was sufficient.

2. Defendant, who was secretary of a lodge of a benevolent association, was prosecuted for embezzling funds intrusted to him for the purpose of sending them to the grand lodge of the order as the dues of his lodge. Held, that it was competent to prove by the grand secretary and other members of the order the existence and constitution of the grand lodge, its relation to subordinate lodges, and the duties of the secretary as to the funds of the subordinate lodges.

3. Rev. St. 1899, § 2531, provides that in any case of embezzlement an allegation as to the embezzlement of money shall be sustained by proof of embezzlement of any piece of coin, or any note, or any portion of the value thereof; and section 2535 provides that no judgment shall be affected for failure to state the time of the offense where not of the essence of the offense. Held, that a charge of embezzlement of a specified sum by an officer of a benevolent association was supported by proof that at different times he received sums aggregating the sum specified, and converted the entire sum, though it were not taken at the same time or on the same day.

Appeal from Criminal Court, Greene County; J. J. Gideon, Judge.

Will Wise was convicted of embezzlement, and he appeals. Affirmed.

T. J. Murray and P. T. Allen, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

GANTT, J.

At the July term, 1903, of the criminal court of Greene county, an information was filed by the prosecuting attorney of Greene county charging the defendant with the embezzlement of $38, the property and money of Eureka Lodge, No. 39, of the Ancient Order of Free and Accepted Colored Masons, a benevolent and fraternal organization, of which defendant was at the time a member and the secretary thereof, on the 30th of December, 1902. The defendant was arrested, duly arraigned, and pleaded not guilty. At the July term, 1903, and on the 8th of August, 1903, defendant was put upon trial, and convicted, and sentenced to the penitentiary for three years. The defendant is not represented by counsel in this court, but we have examined the whole record.

1. The evidence established that Eureka Lodge, No. 39, of the Ancient Order of Free and Accepted Colored Masons, was a subordinate lodge of the Grand Lodge of Colored Masons of the Ancient Order of Free and Accepted Masons; that it was a benevolent organization, and that from January 24, 1902, until March 4, 1903, the defendant, William Wise, was the secretary of said Eureka Lodge, No. 39, A. F. & A. M., at Springfield, Mo.; that on or about the 14th of November, 1902, and on or about December 30, 1902, the defendant, as the secretary of said Lodge No. 39, received of and from Robert Cain, the treasurer of said lodge, moneys aggregating $38.10, under the order of said lodge, to transmit to the grand lodge of said order in payment of the dues of said subordinate lodge and its members to the grand secretary of said grand lodge; that he did not transmit said funds; that when asked by the members or officers of the lodge in January, 1903, if he had sent in said moneys, he stated he had done so, and had receipts therefor, but when the receipts were demanded he could not and did not produce them. Thereupon the officers of Lodge No. 39 demanded a return of the money, and he failed to pay it, saying he did not have it, and could not replace it, and did not intend to use his own money to do so. After ineffectual efforts to get him to refund the money, he was arrested on the 13th of March, 1903. After his arrest he paid over the $38 to the officers of the lodge. The information in this case is drawn under section 1918, Rev. St. 1899, which makes it embezzlement for any officer or member of any benevolent organization to convert to his own use in any manner whatever the moneys that may have come to him by virtue of his office or official position, or by virtue of any trust reposed in him or them, or which may be in his possession, care, or control by virtue of his office or trust. In the very recent case of State v. Knowles (decided by this court November 22, 1904) 83 S. W. 1083, this statute came before us for construction, and it was held that the statute was broad enough to cover embezzlement by any officer of any benevolent organization, whether the same was incorporated or not; that the language of the act was comprehensive enough to cover any embezzlement by any officer of any benevolent organization; and that it evidently was the opinion of the General Assembly that it was no less reprehensible and criminal in an officer of an unincorporated benevolent organization to embezzle and convert the funds raised for charitable and praiseworthy purposes than it is to embezzle the funds of an incorporated society. The statute was obviously enacted to remedy a defect in the common law under which one could not be guilty of embezzlement of moneys of...