The State v. Bouslog
| Decision Date | 30 November 1915 |
| Citation | 180 S.W. 859,266 Mo. 73 |
| Parties | THE STATE v. LEVI BOUSLOG, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Ralph S. Latshaw, Judge.
Affirmed.
George M. Jacques for appellant.
(1) In a trial for embezzlement of money, admission of evidence tending to prove the embezzlement of any other property is error, and the admission of irrelevant or immaterial evidence which in its effects tends to injure the defendant in his material rights is error. (2) In a prosecution for embezzlement the State must show: first, that accused was an agent, servant, employee; second, that he received the money or other property in the course of his employment; third that he received money or other property belonging to his principal; fourth, that he converted in county in which prosecuted the money or other property to his own use, with intent to steal and embezzle it. 15 Cyc. 497; Case v State, 26 Ala. 17; Ex parte Hedley, 31 Cal. 108; Shelburn v. Com., 85 Ky. 173; Com. v Smith, 129 Mass. 104; State v. Adams, 108 Mo. 208; State v. Jennings, 98 Mo. 493; State v. Reilly, 4 Mo.App. 392. And in a prosecution for embezzlement the material allegations of the indictment or information must be proven as laid and the proof must correspond to the allegations of the indictment or information describing the money or property alleged to have been embezzled. 15 Cyc. 525; State v. Hanley, 70 Conn. 265; Weiner v. People, 186 Ill. 503; Com. v. Merrifield, 4 Metc. (Mass.) 468; State v. Schieb, 159 Mo. 130; State v. Dodson, 72 Mo. 283; Black v. State, 44 Tex. 620; State v. Hoshor, 26 Wash. 643. Nowhere in the evidence is it shown that the defendant received from the prosecuting witness lawful money of the United States in Jackson county, the nearest approach to this being the testimony of the witness Kilroy, and his testimony is that a check was received in Barton county and cashed in Kansas City, but evidence showing the embezzlement of a deed; draft, check or note does not support an information for the embezzlement of money. State v. Castleton, 255 Mo. 201; State v. Mispagel, 207 Mo. 559; State v. Wissing, 187 Mo. 106; State v. Crosswhite, 130 Mo. 366; State v. Dodson, 72 Mo. 283; Carr v. State, 104 Ala. 43; Lancaster v. State, 9 Tex.App. 393; People v. Leipsic, 62 P. 311; Com. v. Wood, 142 Mass. 459; People v. Meseros, 116 P. 679. Defendant's demurrer should have been sustained for the further reason that the venue was in Barton county. State v. Bacon, 170 Mo. 161; People v. Meseros, 116 P. 679. The information charges that while defendant was acting as the agent, clerk, collector and servant of the prosecuting witness, he did have, receive and take into his possession and under his care and control money to the amount of $ 200, the same being lawful money of the United States. To support this information the State must show that the defendant received of the prosecuting witness in Jackson county, the sum of $ 200 lawful money of the United States. This charge is not supported by proof of his receiving in Jackson county, of a deed to property in Barton county, or by proof of the receiving of a check which was afterward converted to the use of defendant. 15 Cyc. 525; State v. Schieb, 159 Mo. 130; State v. Mispagel, 207 Mo. 559; State v. Castleton, 255 Mo. 201; State v. Wissing, 187 Mo. 106; State v. Crosswhite, 130 Mo. 366; State v. Dodson, 72 Mo. 283; State v. Bacon, 170 Mo. 161; Carr v. State, 104 Ala. 43; Lancaster v. State, 9 Tex.App. 393; People v. Leipsic, 62 P. 311; Com. v. Wood, 142 Mass. 459.
John T. Barker, Attorney-General, and Lewis H. Cook for the State.
(1) No specific reason was assigned for the objections, but the objections throughout the trial were general in their character and did not acquaint the trial court with the reasons assigned therefor. Specific grounds of objections must be made at the trial in order to make the rulings of the trial court reviewable. State v. Goddard, 162 Mo. 198; State v. Lovell, 138 S.W. 623; State v. Miles, 199 Mo. 559. (2) It is for the jury to settle any conflict in the testimony, and although the verdict convicts the defendant of embezzlement by agent, yet if the evidence is substantial the Supreme Court will not disturb the verdict on the ground that it is insufficient or that it is against the weight of the evidence. State v. Rumfelt, 228 Mo. 443; State v. Miller, 188 Mo. 379; State v. McGee, 188 Mo. 409; State v. Leabo, 89 Mo. 255. (3) The defendant being the agent of Mrs. McClintock in securing this loan was vested with authority to cash this check, but in appropriating the money realized therefrom to his own use, he was guilty of embezzlement. The check was cashed in Kansas City, Jackson county, and the venue is established. A convincing and full answer establishing the venue is found in the testimony of Kilroy. State v. Bacon, 170 Mo. 162; State v. Mispagel, 207 Mo. 575. (4) The only witness called in behalf of the defense was the defendant, who admitted on the stand that he received a check for $ 500, for which he gave a warranty deed signed in blank by the complaining witness. These matters were submitted by the court, under proper instructions, to the jury, and the jury, having considered the evidence, found the defendant guilty as charged. Their finding will not be disturbed, as there is substantial evidence to support their verdict. State v. Sassman, 214 Mo. 738; State v. Shelton, 223 Mo. 141; State v. Wooley, 215 Mo. 687; State v. Sharp, 223 Mo. 295.
Defendant was tried in the criminal court of Jackson county upon the charge of embezzlement. The jury found him guilty and fixed his punishment at imprisonment in the penitentiary for a term of two years. From this conviction, after making the conventional motions, he has appealed.
The facts are brief and so far as they are material in the illumination of the points discussed in the opinion, run thus: Defendant was engaged in the real estate business in Kansas City. He had certain dealings in real estate with one Mrs. Edith McClintock, who is the prosecuting witness in the case, by which defendant acquired from Mrs. McClintock certain farms in Nebraska and at Polo, Missouri, and certain town property at Excelsior Springs, and Mrs. McClintock acquired from defendant a farm in Barton county, Missouri. All of this property seems to have been very heavily encumbered with mortgages. In addition to the property exchanged by Mrs. McClintock with defendant for the Barton county farm, the former owned a house and lot in Excelsior Springs which was encumbered for $ 1200, upon which encumbrance the holders were threatening foreclosure. The Clay County Bank, with which Mrs. McClintock had dealings, was willing to take over this encumbrance, but was unwilling to take this latter property for the security of the full amount of the $ 1200 encumbrance and insisted that the amount thereof should be reduced to $ 800. Being unable otherwise to obtain this sum of $ 400, Mrs. McClintock arranged with defendant to obtain this money for her on the Barton county farm, the defendant representing to her that he could get from five to seven hundred dollars on Mrs. McClintock's equity in this farm if she would execute a blank warranty deed therefor to be put up, as defendant expressed it, "in escrow." Sometime about the latter end of the year 1910 or the beginning of 1911, Mrs. McClintock executed and acknowledged a warranty deed to the Barton county farm, leaving the name of the grantee therein blank. Upon this warranty deed, defendant, sometimes in the early days of March, 1911, obtained $ 500. Subsequently and on March 10, 1911, he paid to the Clay County Bank $ 300 on the sum of $ 400 which the bank demanded of Mrs. McClintock as a condition precedent to its taking up the $ 1200 loan on her Excelsior Springs property. Defendant at the time claimed that the $ 300 was advanced by him out of his own money. The balance of the $ 500 procured by defendant through the use of the warranty deed on the Barton county farm, was never paid by him to Mrs. McClintock. Mrs. McClintock did not learn that defendant had used the warranty deed until the Barton county farm was lost to her, defendant having obtained the money on an agreement to re-pay the same within ninety days.
The proof shows that the check for the sum of $ 500 in question was payable to Mrs. McClintock, and that defendant, according to his own admissions upon the trial, indorsed such check by request of Mrs. McClintock and collected it in Kansas City, Missouri.
Defendant admitted obtaining the check for the sum of $ 500 by the means set out above, but contends that in addition to the $ 300, which it is conceded he paid to Mrs McClintock, and which was used in reducing the encumbrance on the Excelsior Springs property, he paid her in cash the further sum of $ 200. He also contends that he paid certain interest on encumbrances on the property she traded to him and which she admits she agreed to pay, and that he paid the sum of $ 100 to obtain the extension of the ninety-day redemption period on the Barton county farm. All these latter contentions are denied, however, by Mrs. McClintock. The record is obscure and unsatisfactory, but to eke...
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