The State v. Bunton
| Decision Date | 28 May 1926 |
| Docket Number | 26893 |
| Parties | THE STATE v. E. A. BUNTON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Andrew Circuit Court; Hon. Thomas B. Buckner Special Judge.
Affirmed.
S K. Owen, K. D. Cross and Eastin & McNeely for appellant.
(1) The note in question was left with the bank for safe-keeping; but at the time of its sale to Wolff it was in the bank's note file and was in the bank's note register. From the note file it was sold to Wolff and Wolff gave the bank a check for it on his deposit in the bank, the bank receiving the money for it. If the possession was lawful in the first instance and there was a criminal misappropriation of the thing possessed, it was embezzlement and not larceny. 20 C J. 410; 36 C. J. 775; State v. Fink, 186 Mo. 50; State v. Custer, 170 Mo.App. 539; State v. Casey, 207 Mo. 1, 123 Am. L. R. 367, 11 A. L. R. 803, note. (2) If the note in question was lawfully in the possession of the bank in the first instance, then, even if the defendant aided the bank to convert it, he was not guilty of larceny. 36 C. J. 774; State v. Casey, 207 Mo. 1. (3) There are two counts, larceny and embezzlement. Defendant was guilty of neither. Under no theory was he guilty of larceny of which he was convicted in this case. State v. Casey, supra. (4) Since under all the evidence the note was left with the bank (the owner says with the cashier) and the cashier entered it in the bank's note register as an asset of the bank (the entry is in the cashier's handwriting), then if, as defendant claims, he sold it in good faith, as an officer of the bank, out of the note file of the bank, and as is conceded, the bank got the money for it, he could not have been guilty of larceny, and it was error to refuse defendant's Instructions E, F, and G, and in the instructions given to fail to refer to defendant's main defense and not to include any instruction whatever upon defendant's theory of the case. State v. Collins, 292 Mo. 102; State v. Slusher, 301 Mo. 285. (5) The court erred by his rulings and remarks indicating an attitude of mind on the part of the court adverse to the defendant and calculated to influence the decision against him and placing defendant at a disadvantage before the jury. State v. Davis, 217 S.W. 87; State v. Drew, 213 S.W. 106; State v. Jones, 197 S.W. 156.
North T. Gentry, Attorney-General, and James A. Potter, Assistant Attorney-General, for respondent.
(1) There being no evidence to the effect that the Exchange Bank customarily accepted notes and securities for safe-keeping, and no evidence that it ever authorized any of its employees or officers to accept notes or securities for safe-keeping, this court cannot find nor presume that the Redmond note was taken into the bank under such circumstances as to constitute a bailment between Mrs. Roloson, the owner of the note, and the bank. If a bailment arose from the transaction at all it was a bailment between the owner of the note and the individual employee who received the same, and while the evidence fails to show which particular employee received the note, it does show that such employee was not the defendant. It necessarily follows that the defendant committed a trespass against the possession of such employee when he sold the note, and he was therefore guilty of larceny and not embezzlement. Instruction number nine given for the State authorized the jury to convict the defendant of embezzlement if the jury believed the defendant was in lawful possession of the note as a bailee. By its verdict the jury found as a fact that the defendant was not in the lawful possession of the note as a bailee. The jury evidently believed that the employee who received the note was a bailee and that defendant's act in selling the note was a trespass against the possession of such employee and a theft from such bailee. State v. Moore, 101 Mo. 316; Cote v. Gillette, 186 S.W. 538; State v. Cunningham, 51 Mo. 479; Sedgwick v. Nat. Bank, 295 Mo. 230; Fitzsimmons v. Commerce Tr. Co., 200 S.W. 437; United States v. Allen, 150 F. 152; People v. Belden, 37 Cal, 51; Colip v. State, 153 Ind. 584; Watkins v. State, 207 S.W. 926. (2) Under no theory of the case was the bank or the defendant in legal possession of the note in controversy. At most the bank and its several employees had merely the care and custody of the note, the constructive possession thereof remaining in the real owner; hence, the act of the defendant in selling the note involved a trespass upon the constructive possession of the real owner. Chanock v. United States, 267 F. 612; Boswell v. State, 1 Ala.App. 178; Ludlum v. State, 69 So. 255; Commonwealth v. Doherty, 127 Mass. 20. 2 Bishop's New Criminal Law (8 Ed.) p. 826; Kelly's Criminal Law (3 Ed.) p. 586; Shipp v. Patton, 126 Ky. 65; 1 Words & Phrases (2 Series) p. 1184. One merely having the custody of goods may commit larceny thereof. State v. Barney, 57 So. 598; People v. Barnes, 143 N.Y.S. 885; Jenkins v. State, 62 Wis. 49; People v. Perini, 94 Cal. 573; United States v. Weisberg, 258 F. 284; Smith v. State, 227 S.W. 1105; People v. Brenneauer, 166 N.Y.S. 801; State v. Hatcher, 76 So. 694; State v. Keelen, 203 P. 306; State v. King, 72 So. 552; United States v. Atkinson, 289 F. 935; Rosenblum v. State, 98 So. 216; Warmoth v. Commonwealth, 81 Ky. 133; Talbert v. United States, 42 App. (D. C.) 1. (3) Even though the court may believe that the conduct of McClure and the employee of the bank who received the note about March 19, 1919, constituted a bailment as between the bank and the owner of the note, Mrs. Roloson, the tortious acts of the employees of the bank whereby they entered the note as an asset of the bank and gave the defendant credit for the value of the note amounted to an attempted sale thereof and terminated the bailment, and the subsequent action of the defendant in selling the note and permanently depriving the owner thereof constituted larceny. When the bailment was ended the constructive possession of the note reverted to the real owner and the sale of the note by the defendant necessarily involved a trespass against such constructive possession. Johnson v. People, 113 Ill. 99; Nichols v. People, 17 N.Y. 114; State v. Fairclough, 29 Conn. 47; Commonwealth v. Davis, 104 Mass. 548; 17 R. C. L. 42, sec. 47; State v. Ruffin, 164 N.C. 416; Note, 47 L. R. A. (N. S.) 852; 2 Bishop's Crim. Law, (9 Ed.) p. 630; 2 Horton's Crim. Law (11 Ed.) sec. 1209, p. 1426; Emerson v. Fisk, 6 Me. 200; Crump v. Mitchell, 34 Miss. 449; Sanborn v. Coleman, 6 N.H. 14; Johnson v. Whittemore, 27 Mich. 463; Rankin v. Sheppardson, 89 Ill. 445; Partridge v. Philbrick, 60 N.H. 556; Lovejoy v. Jones, 30 N.H. 164; Smith v. Stewart, 5 Ind. 220.
In February, 1923, the defendant was indicted by the grand jury of DeKalb County for larceny and embezzlement. The charge was in two different counts of the same indictment. He took a change of venue to Andrew County and was there tried in November, 1924, his trial resulting in a conviction for the larceny and an assessment of three years' imprisonment in the penitentiary, and an acquittal of the embezzlement.
He was president of the Exchange Bank at Maysville, DeKalb County, from the year 1911 to January, 1923, when the bank failed. Susan Duncan had been cashier of the bank for several years prior to and at the time the transaction occurred out of which this prosecution arose.
On March 19, 1919, A. C. Redmond borrowed three thousand dollars from A. J. Hitt, Redmond giving his note therefor, secured by a mortgage on land in DeKalb County. Prior to making the loan Hitt had arranged to dispose of the note to Finley McClure, the agent of the latter's sister, Alice Roloson. As soon as the loan was made Hitt transferred the note to Alice Roloson. About March 20, 1919, Finley McClure, as the agent of Alice Roloson, took the note and mortgage to the Exchange Bank of DeKalb County and left it there for safe-keeping. He testified that he took the note to the bank, presented it at the window and left it there for safe-keeping and the convenience of the maker when he wanted to pay the interest; that he left the note with one of the employees of the bank, who was at the window; he did not recall that the defendant was present at the time, and did not remember to which employee he delivered the note.
Susan Duncan testified that she did not know the note was in the bank until June 18, 1921. McClure's cross-examination authorizes the conclusion that he left the note with Susan Duncan, but he did not positively so testify.
On June 18, 1921, the defendant, who had evidently learned that the note had been deposited in the bank, told Susan Duncan to give his account credit for the amount of it, namely, three thousand dollars. On that date she made a deposit slip for three thousand dollars as representing the principal of the Redmond note and placed it to the credit of the defendant, who was at the time overdrawn in the bank; and the defendant later checked out the three thousand dollars. At the time defendant gave Miss Duncan this direction (June 18, 1921), she placed the Redmond note in the bank's note case as a part of its assets. The bank note register shows that the note was entered as a bank asset on June 8, 1921; but in the light of all of the other evidence, including exhibits from the bank records, the date of June 8th is evidently an error.
December 29, 1921, Redmond, the maker of the note, made a payment of three hundred dollars thereon to Hitt, who turned it over to...
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