State v. Wissing

• Decision Date: 21 February 1905
• Citation: 85 S.W. 557,187 Mo. 96
• Parties: STATE v. WISSING.
• Court: Missouri Supreme Court

85 S.W. 557

187 Mo. 96

STATE v. WISSING.

Supreme Court of Missouri, Division No. 2.

February 21, 1905.

CRIMINAL LAW — EMBEZZLEMENT — INFORMATION — ELECTION — MOTION — TIME — INSTRUCTIONS — ISSUES AND PROOF.

1. Where, in a prosecution for embezzlement, the information proceeded on the theory of a single embezzlement of a lump sum, an application, before the state's evidence was introduced, to compel it to elect on which of several transactions out of which the alleged embezzlement grew it would rely for a conviction, was presented out of time, and properly denied.

2. Where defendant was charged with embezzlement of $1,200, lawful money of the United States, and it was proved that, aside from certain checks belonging to his employer, the proceeds of which he appropriated, he also took and failed to account for $160 from an office fund kept for the payment of running expenses of the office of which defendant was manager, and he also admitted that he had received moneys belonging to his employer to the amount of about $1,200, including $70 in cash, not including the amount abstracted from the office fund, instructions submitting to the jury, in apt words, the question of embezzlement of $1,200, lawful money of the United States, of the value of $1,200 as charged in the information, were not erroneous as assuming that the offense was committed by the embezzlement of checks.

3. Where an information charged that defendant, within three years next preceding the filing thereof, embezzled a certain sum of money belonging to his employer, the charge was sustained by proving the embezzlement by him of any such sum, or portion thereof, within such time

under Rev. St. 1899, § 1821, obviating the necessity of specifying in any indictment the time when the offense was committed, where time is not of the essence thereof.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

W. H. Wissing was convicted of embezzlement, and he appeals. Affirmed.

S. S. Bass and Chester H. Krum, for appellant. E. C. Crow, Atty. Gen., and Thos. B. Harvey, for the State.

BURGESS, P. J.

On the 13th day of July, 1903, the circuit attorney of the city of St. Louis filed in the office of the clerk of the circuit court of said city an information in which it is charged: "That W. H. Wissing on or about the 20th day of May, 1903, at the City of St. Louis aforesaid, being then and there agent, clerk collector and servant of the Crocker-Wheeler Company (a corporation organized and existing under and by virtue of the laws of the State of New Jersey): (and he, the said W. H. Wissing, not being then and there a person under the age of sixteen years), then and there by virtue of such employment and office of Agent, clerk, collector and servant as aforesaid, did have, receive and take into his possession and under his care and control certain money of the amount and value of One thousand two hundred ($1,200.00) dollars, the same being then and there lawful money of the United States, but a description of which said money is to informant unknown, and which said money was then and there of the value of one thousand two hundred ($1,200.00) dollars, and the money and personal property of the said Crocker-Wheeler Company, a corporation as aforesaid, the employer of him, the said W. H. Wissing; and that the said W. H. Wissing the said money then and there unlawfully, fraudulently and feloniously did embezzle and convert to his own use, without the assent of the said Crocker-Wheeler Company, a corporation as aforesaid, the owner of said money, with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the said Crocker-Wheeler Company, a corporation as aforesaid, of the use thereof. Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State." Thereafter, on the 20th day of November, 1903, defendant was put upon trial, found guilty as charged, and his punishment fixed at 10 years' imprisonment in the State Penitentiary. In due time thereafter defendant filed motion for new trial and in arrest, both of which being overruled, he saved exception, and brings the case to this court by appeal for review.

The information is under section 1912, Rev. St. 1899. At the time of the alleged embezzlement, the Crocker-Wheeler Company, a corporation, was engaged at Ampere, N. J., in the manufacture of electrical machinery. The defendant, W. H. Wissing, was the St. Louis agent of said company, engaged in selling its merchandise and collecting its accounts in certain adjacent territory, for the performance of which duties he was paid a stipulated monthly salary. He had been in the service of the said company for about three years next preceding the discovery of his defalcations in the month of May, 1903, when he was discharged. For the convenience of its agent, and to facilitate its business, the company established and maintained at its own expense a branch office at St. Louis, and undertook to keep in the hands of its agent for office expenses, and for the expenses of himself in traveling and soliciting business, the sum of $300, which was replenished from week to week by remitting to the defendant the amount of his expense account forwarded by him to the company each week. Said expense account included any and all moneys claimed to have been expended by the defendant for any treats, courtesies, or social attentions bestowed upon customers or prospective customers whom the defendant might seek to cultivate in pushing the business. All accounts for sales were rendered by the home office and sent to the defendant for collection, and the understanding was that all checks and drafts in payment of bills should be drawn to the order of the company and remitted to it forthwith by the defendant. For his services as such salesman and collector, defendant's salary of $1,500 for the first year was increased to $2,500 for the second year, and to $3,500 for the third year, during which last year the defalcation occurred. Becoming dissatisfied and suspicious because of many irregularities by its agent in the conduct of the business and unsatisfactory explanations regarding delays in collecting the accounts of responsible parties, the company in May, 1903, notified defendant that they would terminate the contract between them at a certain date, and sent out to St. Louis one of its officers to investigate the conditions of the agent's business, and to install another agent therein. Thereupon it was discovered, and the defendant confessed, that he had collected and appropriated, and not reported to his principal, about $1,200 on checks received from customers of the company, upon which he had realized the money, and $70 in cash, received by defendant from the Jas. J. Cullen Heating Company in payment for goods purchased from the Crocker-Wheeler Company. He also appropriated to his own use $163 of his employer's money, which he took from what was called the "office fund." When the shortage was disclosed, and the defendant was confronted by his employer, and a demand made for the money, he said that he did not have it; that he had spent it in riotous and expensive living. As a witness, he claimed that he had spent it upon customers and in...