The State v. Britt

• Decision Date: 03 June 1919
• Citation: 213 S.W. 425,278 Mo. 510
• Parties: THE STATE v. EARL BRITT, Appellant
• Court: Missouri Supreme Court

213 S.W. 425

278 Mo. 510

THE STATE v. EARL BRITT, Appellant

Supreme Court of Missouri, Second Division

June 3, 1919

Appeal from Pemiscot County. -- Hon. Sterling H. McCarty, Judge.

Reversed.

Sam J Corbett for appellant.

(1) There was no sufficient evidence in the case to warrant or authorize a verdict of guilty, or to sustain a conviction and the court erred in refusing to instruct the jury to find the defendant not guilty. (2) It is not a crime to borrow a shot-gun and merely fail to return it. If defendant still had the gun, nothing further appearing, he was guilty of no offense against the law of the State. If some one stole the gun from him, he was guilty of no offense. To constitute the crime of embezzlement it must be shown "that there was a fraudulent conversion of the personal property, already in the lawful possession of the person who wrongfully and feloniously appropriates it to his own use." State v. Thompson, 114 Mo. 319. In the case at bar there was a total failure of proof of the charge. The only thing shown was that defendant was in the lawful possession of the gun. There was no showing of a felonious intent to appropriate the gun to his own use, nor that defendant had appropriated the same feloniously to his own use. State v. Thompson, 144 Mo. 319. (3) The case therefore falls within the rule "that the Supreme Court will reverse a case where there is a total failure of evidence, or it is so weak that the necessary inference is that the verdict was the result of passion, prejudice or partiality." State v. Glahn, 97 Mo. 679; State v. Howell, 100 Mo. 659; State v. Hellwig, 60 Mo.App. 483.

Frank W. McAllister, Attorney-General, and Thomas J. Cole, Special Assistant Attorney-General, for respondent.

(1) The evidence is sufficient to sustain the conviction. State v. Concelia, 250 Mo. 425; State v. Underwood, 263 Mo. 685. (2) No demand for the property alleged to have been embezzled was necessary. State v. Porter, 26 Mo. 208; State v. Tompkins, 32 La. Ann. 620; Commonwealth v. Tuckerman, 76 Mass. (10 Gray) 208; Leonard v. State, 7 Tex.App. 447; 10 Am. & Eng. Ency. Law, p. 447.

OPINION

FARIS, J.

Defendant was convicted in the Circuit Court of Pemiscot County of grand larceny under the provisions of Section 4552, Revised Statutes 1909 and sentenced to imprisonment in the Penitentiary for a term of two years. From this conviction, after the usual motions and pursuant to the conventional procedure, he has appealed.

Many contentions of alleged error are urged upon our attention by defendant. These include (a) errors in the instructions, (b) error in overruling defendant's plea in bar for that, as it was averred, he had not been accorded a preliminary hearing, and (c) error in refusing to sustain the defendant's demurrer to the evidence.

Pretermitting the serious doubt whether the property alleged to have been embezzled was of sufficient value to make the embezzlement thereof a felony, as well as the palpable error in the instructions, for that -- to say no more -- instruction one was broader than the proof and so was erroneous, we come to a more vital question in the case, which is: Was there any sufficient evidence to sustain this conviction?

We are clearly of the opinion that there was not. Defendant borrowed from the owner thereof a certain Marlin repeating shot-gun (which the information charged defendant with embezzling as a bailee under such circumstances as to constitute grand larceny) upon the promise to such owner to return the gun in the afternoon of the same day on which he borrowed it. This promise defendant failed to keep, and continued so to fail for some eight months, at the end of which time this prosecution was commenced. This is, so far as the evidence in the case discloses, the whole sum of defendant's guilt and offending. There was no demand made on defendant, by the owner of the gun for the return thereof, nor was there any showing that defendant had sold the gun or secreted it, or disposed of it, or otherwise in any affirmative or overt way converted it to his own use. In fact, one witness for the State, testifying as of a time subsequent to the arrest of defendant, says that the latter told the witness that he still had the gun. Another witness for the State swore that defendant stated to him that the gun had been stolen from defendant, but that he intended to pay the owner thereof for it. From this state of the proof, we are of the opinion that there was no sufficient evidence of a conversion of the gun by defendant to his own use with a fraudulent intent to deprive the owner thereof permanently. Touching this necessary element of embezzlement, it was said by this court in the case of State v. Cunningham, 154 Mo. 161, 55 S.W. 282, that:

"A much more serious question is with respect to the failure of the instruction to tell the jury that in order to convict the defendant they must believe from the evidence that he converted the money to his own use without the assent of McLemore with a felonious of fraudulent intent to deprive him thereof. The State, however, contends that the only intent required by the statute is that the defendant should have intended to convert the money to his own use without the assent of his principal, and that if he unlawfully did so he is guilty under the statute. There was no such crime as embezzlement at common law; it is purely a statutory offense and as to such offense, it is said: 'There must be an evil intent, though the statute is silent on the subject'. [1 Bishop's Criminal Law (6 Ed.), sec. 345.] So in 10 Am. and Eng. Ency. of Law (2 Ed.), 996, it is said: 'To constitute embezzlement, it is necessary that there shall be a criminal intent. Most of the statutes, by the use of various terms, expressly require this. Even when they do not, the necessity for such an intent is to be implied. There must be, as in larceny, a fraudulent intent to deprive the owner of his property and appropriate the same.' [Eilers v. State, 34 Tex. Crim. 344, 30 S.W. 811.] The word unlawfully where used in the instruction does not supply the word felonious, or the words fraudulently, etc., for while defendant may have unlawfully converted the money to his own use, it does not necessarily follow that he did so with a felonious or fraudulent intent, and unless he did so with such intent he is not guilty of embezzlement, although the statute does not in express terms require that there shall be a criminal intent. [State v. Reilly, 4 Mo.App. 392.] Many things are unlawfully done which are not crimes, because the criminal intent is wanting.

"No one can be convicted of a felony in the absence of an intent to do a criminal act, but such intent in case of embezzlement may be inferred from a felonious or fraudulent conversion. [State v. Noland, 111 Mo. 473, 19 S.W. 715; Dotson v. State, 51 Ark. 119, 10 S.W. 18; People v. Wadsworth, 63 Mich. 500, 30 N.W. 99.] Thus in Rex v. Williams, 7 C. & P. 338, a servant was sent to receive rent due her employer, and after receiving it, instead of returning, she left the country. It was held that a fraudulent intent to convert the money might be inferred from the circumstances.

"In the case at bar the defendant after receiving the money, with specific directions as to its application, disobeyed his instructions, abandoned his place of...