Storms v. State

• Decision Date: 03 December 1906
• Citation: 98 S.W. 678,81 Ark. 25
• Parties: STORMS v. STATE
• Court: Arkansas Supreme Court

98 S.W. 678

81 Ark. 25

STORMS v. STATE

Supreme Court of Arkansas

December 3, 1906

Appeal from Sebastian Circuit Court; Styles T. Rowe, Judge reversed.

STATEMENT BY THE COURT.

The appellant was indicted as follows: "The said defendant in the county and district aforesaid, on the 1st day of September, 1905, and being then and there the bailee of Ft Smith Commission Company, a corporation, and as such bailee having received from Dave Mayo, Tom O'Leary and Frank Mason $ 10.50, gold, silver and paper money of the value of $ 10.50, the property of said Ft. Smith Commission Company, a corporation as aforesaid, and being then and there the bailee of said Ft. Smith Commission Company, unlawfully and feloniously did convert and embezzle to his own use the said above described $ 10.50, gold, silver and paper money of the value of $ 10.50, the property of said Ft. Smith Commission Company, and so the said Gus Storms the above described money of the value of $ 10.50, the property of said Ft. Smith Commission Company, unlawfully and feloniously did steal take and carry away."

A demurrer in short to this indictment was overruled. The State adduced the following testimony:

C. B Riley testified: "In the year 1905 I was employed as manager of the Ft. Smith Commission Company. Louis Weiman was acting as salesman and collector. Defendant was employed as wagon driver and collector of bills that he delivered C. O. D. It was his duty to collect these bills, mark the bills paid and deliver the money to the office."

Q. "I will ask you to state how you received and filled orders of these C. O. D. packages in the city of Ft. Smith?"

A. "The customer would call over the 'phone or give the order to some of our city salesmen, who would 'phone it in, and this order would be written upon one of the order sheets, and the shipping clerk would fill the order. Such orders would be turned over to the shipping clerk, who would get the goods out, mark the weight and fill out the amount in dollars and cents, make out the number of ticket, invoice to the customer going to, and turn it over to weighman or driver. The only record we have in the office was the memoranda taken down on the order blank and turned over to the shipping clerk. The order blanks were placed in the drawer of the shipping clerk's desk. In the evening these sheets were taken to the bookkeeper, and the next day he would charge them up on the ledger. The bill for the 14th of January, 1905, for potatoes and celery sold Dave Mayo, amount $ 10.50, was made out by Mr. Tom Williams, shipping clerk, and was marked "Paid" by the defendant Storms. There is no record in our office of this transaction. I found the bill in the possession of Mayo." The State then offered in evidence the other bills sold Mr. Mayo, five bills sold Hotel Main, and eight bills sold Stevens & Rainey, all of which were objected to. "The bills are found on page 33 of the record. There is no charge of these bills on the books of the Ft. Smith Commission Company. Frank Wyman was in the employ of the company when these bills were purchased. I did not see the goods delivered; only know the bill was marked 'Paid.'" Cross-examination: "Don't know who delivered them or to whom the money was paid or how paid; do not say the money was not turned over to Wyman. There were about twenty other employees besides Wyman. Don't know if the money was turned over to them; the records do not show. It seems there was money turned over know what Wyman told me." Re-direct examination: "If he delivered goods, it was his duty to turn the money over to the cashier. Wyman had no right to collect. Wyman was a salesman and collector; he collected from the customers; had no authority to collect from drivers. It was Storms's custom to turn money over to the cashier. Don't know what particular bills were collected, or what moneys were turned over to the cashier; don't know whether he did or did not turn over this $ 10.50."

Frank Mason testified: "I was manager of Mayo's restaurant. It was the custom in the year 1905 for me to O. K. bills and for Mr. O'Leary to pay them. Some of the bills shown me were O. K.'d by Mr. Eckwood. The bill of January 14 was not paid by me; it was paid by Mr. O'Leary or Mr. Mayo." Cross-examination: "Don't know of my own knowledge whether it was ever paid, nor how it was paid. The bill shows I O. K.'d it, and it was supposed to be collected after I did this."

Dave Mayo testified: "The bill shown me of January 14, 1905, was O. K.'d by Frank Mason, and paid by somebody in our employ. I don't know who paid it. It was paid at my place of business by some one. Don't know of my own knowledge who paid it. Was not present when it was paid. Know nothing of my own knowledge except what the bill shows." Cross-examination: "Do not know of my own knowledge who made payment of the bill. Do not know whether defendant got any money on it. Do not know whether it was all paid at one time or at different times."

Emma Yonkee testified: "Was cashier and bookkeeper for the Ft. Smith Commission Company in the year 1905. C. O. D. bills in the city would be turned in by the driver, a copy of the invoice brought to the cashier, the money turned in and the bills stamped 'Paid.' When money was thus turned in, I put the amount in a book I had for record and returned the bill to the driver after it was stamped 'Paid.' The batch of Dave Mayo's bills shown me, including the one January 14, 1905, do not appear upon my cash book to have been paid."

C. B. Riley, recalled, testified: "There is no record upon any of their books of any of the sixteen bills sold Mayo, or of the eight sold Stevens & Rainey, nor of the five sold Hotel Main."

Dave Mayo, recalled, testified that either Mr. O'Leary or himself paid the other bills shown him.

The bills introduced in evidence, other than the one upon which the embezzlement was based, consist of five bills to Dave Mayo, the first being dated February 14, 1905, and the last September 7, 1905. The five bills sold Hotel Main are of date September 8, 1905, to September 23, 1905. The first bill of Stevens & Rainey bears date May 9, 1905, and the seven others at sundry dates from that time to September 13, 1905. The introduction of each of these bills was objected to, and objection overruled.

This was all the testimony introduced on behalf of the State. Defendant introduced testimony as to his good character.

The prosecuting attorney in his opening statement to the jury, among other things, said: "That the Ft. Smith Commission Company had been systematically robbed by its employees; that the scheme by which it was accomplished was, when an order for goods to be delivered by wagon in Ft. Smith was received it would be filled, but no entry be made on any books; that the slip showing the order would be given the shipping clerk, who would put it in a drawer in the office, and afterwards a confederate in the house would steal out this slip, so it would not go to the bookkeeper; that when the goods were delivered and collection made by the defendant, he, defendant, and his confederates would divide the money; that Wyman was in the deal, and had been arrested for it, but gave bond, forfeited his bond and ran away." Defendant objected to each and every statement made by the prosecuting attorney as above set out, but the court overruled the objection, saying that he would "govern that when the evidence was offered; it might or might not be admissible."

The prosecuting attorney in his concluding argument said: "That not only did the defendant embezzle $ 10.50, but the bills he collected at Hotel Main, Stevens & Rainey and the other bills collected from Dave Mayo; that this was accomplished through the scheme he outlined in his opening statement to the jury, for which Wyman had been arrested and gave bond and skipped the country." Defendant objected to each and every statement above set out and thereupon the court said that the jury "might consider the other bills sold to Mayo, Hotel Main and Stevens & Rainey only for the purpose of determining defendant's intent, but the jury could not convict him of any offense except the one charged in the indictment, and that this evidence was admitted for the sole purpose of shedding light on the question of intent, if it did so." The court, with this statement, overruled defendant's objection, to which defendant excepted.

The court, after having instructed the jury that, in order to convict the defendant, the testimony must establish that $ 10.50 in gold, silver or paper money were paid to...