The State v. Bunton

• Decision Date: 26 February 1926
• Docket Number: 26514
• Citation: 280 S.W. 1040,312 Mo. 655
• Parties: THE STATE v. E. A. BUNTON, Appellant
• Court: Missouri Supreme Court

280 S.W. 1040

312 Mo. 655

THE STATE v. E. A. BUNTON, Appellant

No. 26514

Supreme Court of Missouri

February 26, 1926

Appeal from Andrew Circuit Court; Hon. Thomas B. Buckner Judge.

Reversed and remanded.

S K. Owen, K. D. Cross and Eastin & McNeely for appellant.

(1) The State having introduced evidence of a total shortage defendant had a right to meet it with any evidence which would tend to support his denial of fraudulent intent, by explaining the alleged general shortage, or any part of it, in a manner consistent with his innocence. State v. Wilcox, 179 S.W. 480; 20 C. J. 491. (2) The court erred by 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's counsel 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.

Robert W. Otto, Attorney-General, and James A. Potter, Special Assistant Attorney-General, for respondent.

(1) The defendant admitted using all the money included in his admission, as testified by the witnesses Todd, Duncan, Winters and Shelby, and no evidence was excluded which tended to explain such shortage. It is not error to reject testimony which does not explain nor modify that portion of his conversation related by witnesses. State v. Sibley, 207 S.W. 806. (2) Neither the remarks by the court nor the conduct of the court during the trial constituted reversible error. (3) The record does not show the refusal to permit any legitimate offer of evidence. The only times when defendant's counsel were forbidden to pursue a line of inquiry was after the court had passed upon the same proposition at least a half dozen times and appellant's counsel had taken their exceptions thereto. State v. Duestrow, 137 Mo. 44; State v. Teeter, 239 Mo. 483; State v. Jackson, 222 S.W. 746.

OPINION

Blair, J.

Defendant was convicted of embezzlement. The indictment charged the commission of the crime in DeKalb County, within three years prior to February 2, 1923. The case was sent to Andrew County upon change of venue because of alleged prejudice of the inhabitants of DeKalb County. Defendant thereafter filed the statutory affidavit of bias and prejudice and disqualified the regular judge. The first special judge called in failed to appear and hold court for the trial of the case. Hon. Thomas B. Buckner of the Jackson County Court was then called in as special judge and appeared and tried the case.

After several continuances on account of the serious illness of the defendant, who was then over seventy years of age, the case was finally tried in June, 1924. The jury found defendant guilty as charged and fixed his punishment at imprisonment in the penitentiary for a term of three years. Judgment was entered on this verdict and appeal granted therefrom.

This indictment is based upon Section 3327, Revised Statutes 1919, making it an offense, punishable as for larceny, for any officer, agent, clerk, servant or collector of any incorporated company (such person not being under sixteen years of age) to embezzle or convert to his own use, without the consent of his employer, any money, etc., belonging to any other person, which shall have come into his possession or under his care by virtue of such employment.

Defendant was president of the Exchange Bank of DeKalb County at Maysville for several years prior to December 20, 1922, when said bank was closed by the Department of Finance. Said bank was a banking corporation, organized under the laws of this State. Defendant had been connected with the bank for about thirty years as stockholder, director and later as its president. Defendant was the only man connected with said bank until about three months before it was closed. At that time R. E. Shelby became cashier, succeeding Miss Duncan in that position. Prior to that time, three young women comprised the employees of the bank. These young women had been employed there for a number of years. They had been trained by defendant and followed his directions unquestioningly. Hence, there is considerable basis for the State's contention that this was a "one-man bank."

It appears that defendant was interested in several business enterprises outside of the bank. It seems that he had acquired, in large measure, the confidence of the community. The record discloses a number of instances where substantial sums of money were deposited in the bank upon checking account under agreements with defendant that the bank would pay such depositor rates of interest varying from five and one-half per cent to seven per cent. The prevailing rate seems to have been six per cent. Naturally such attractive interest rates drew money from other banks, brought forth the mouse-eaten miser's hoard and secured the deposit of the widow's insurance money. The defendant denied that he made any agreement that the bank would pay such unusually high rates of interest upon checking accounts. His testimony was that he told depositors, who asked such rates of interest, that the bank would not pay that rate of interest, but that he could handle their money for them and get that rate and that they agreed that he should do so.

The method followed in a number of cases was this: The depositor would bring his money to the bank and deposit it and take a deposit slip showing an unconditional deposit. This would be credited to the customer's account. A pencil check-mark would be entered after such credit to indicate that the money was taken by defendant. Defendant would draw a check, payable to himself, for the amount, showing that the check was to be charged to the depositor. If the check was not drawn, a debit slip was made out showing that defendant got the money. An entry was then made in defendant's account showing the source of the credit to him.

Defendant testified that the money thus taken was loaned by him for the depositor, and notes or other evidence of indebtedness were taken and placed in envelopes and marked with the name of the depositor from whose account the money was taken. From time to time, as interest would be collected (as defendant contended), it would be credited to the depositor or paid to him in cash. Defendant testified that such depositors authorized him to use their money in this fashion. Every depositor whose money was thus used and who testified in the case, flatly denied having had any agreement or understanding of this sort with the defendant. They testified that the loan was made to the bank itself, and that the agreement was that the bank was to pay the interest.

The fact that the depositor expected a good rate of interest on a deposit, upon which he had the right to check at will, had the natural effect of inducing the depositor to keep as large a balance as possible in his account and made the account quite stable and dependable. The evidence tended to show that, if and when a depositor overdrew his account, defendant would make a deposit to the credit of the account. All of the depositors testified that they had no knowledge that defendant had drawn money from their accounts. The checks or debit slips made by defendant did not show on the pass books of such depositors as chanced to have their bank books balanced. When the depositor's book would be balanced his deposit would be shown, but the withdrawal of the deposit by defendant would not appear and defendant's check or debit slip evidencing such withdrawal would not be delivered to the depositor.

How intelligent clerks and bookkeepers could perform the clerical work in furthering such manipulations without a consciousness of exceedingly questionable, if not dishonest, practices on the part of the defendant, is difficult to understand. They were very likely so under the influence of defendant that they did not dream of questioning his methods or so imbued with such a sense of his rectitude, that they did not suspect him of dishonest motives, which they probably would have attributed to other men in whom they had less confidence.

What became of the money withdrawn from these accounts by defendant is not disclosed by the record, unless defendant's testimony is accepted as the explanation. The money was not found in defendant's account when the crash came. Neither were any notes or other evidence of indebtedness found in the bank to cover such withdrawals. Defendant testified that he loaned the money for the depositors and took notes to cover the same and put such notes in envelopes with the depositors' names on them and that such envelopes and notes were in the bank when Todd, the representative of the Department of Finance, took charge. None of the other employees testified to the existence of any such notes. Todd testified that he did not find them when he took charge and defendant was not able to find them thereafter, although he was allowed the opportunity to examine the files and records and other papers of the bank in the presence of Todd. On cross-examination defendant was unable to give the names of persons to whom he claimed he had loaned depositors' money. Defendant admitted withdrawing the money from depositors' accounts, but, as stated contended that this...