The State v. Cunningham
| Decision Date | 06 February 1900 |
| Citation | 55 S.W. 282,154 Mo. 161 |
| Parties | THE STATE v. CUNNINGHAM, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Criminal Court. -- Hon. L. B. McAfee, Judge.
Reversed and remanded.
Henry C. Young for appellant.
(1) Verbal evidence concerning the provisions of a contract admitted to be in writing, is inadmissible. Price v Hunt, 59 Mo. 258; Kuhn v. Schwartz, 33 Mo.App 614; Morgan v. Porter, 103 Mo. 140; Loan & Trust Co. v. Wackman, 71 Mo.App. 277; Williams v. Stifel, 64 Mo.App. 138. (2) The State should not have been permitted to elicit from witness, Minor, his conclusion as to whether or not the defendant was the agent of the Donovan Commission Company. Barrett v. Railroad, 9 Mo.App. 226; Harrison v. Railroad, 50 Mo.App. 332; State v. Gritzner, 134 Mo. 525; Railroad v. St. L. U. St. Yds., 120 Mo. 550; Benjamin v. Street Ry., 133 Mo. 288. (3) Minor's testimony as to matters upon which his information was derived solely from the books of the Donovan Commission Company, should not have been received. Wolff v. Matthews, 39 Mo.App. 378; Anderson v. Valmer, 83 Mo. 407. This is especially true in view of the fact that the books, from which witness refreshed his memory, were not the books of original entry. Hill v. Johnson, 38 Mo.App. 394; Traber v. Hicks, 131 Mo. 186. (4) Prigmore's testimony as to transactions between himself and the Donovan Commission Company and other parties, in defendant's absence, should not have been received. State v. Winton, 116 Mo. 605. (5) The prosecuting attorney should not have been permitted to interrogate the defendant upon matters not referred to on direct examination. State v. Avery, 113 Mo. 498. (6) Defendant should have been permitted to show a commingling of funds. Com. v. Libley, 52 Mass. 64; 10 Am. and Eng. Ency. of Law (2 Ed.), 985; State v. Kent, 22 Minn. 41; 2 Bish. Crim. Law, p. 370. (7) The manner and course of dealing between the Donovan Commission Company and defendant was pertinent as bearing upon the relationship of the parties and the actual character of the transaction. McGrew v. City Produce Exchange, 4 S.W. (Tenn.) 138; Dunn v. Bell, 4 S.W. (Tenn.) 41. (8) Defendant should have been permitted to show that a commission house stands responsible to a broker for the full amount of wheat purchased by him. (a) He should also have been permitted on cross-examination of Minor to show the manner in which accounts between the broker and commission man were settled and that defendant had a running account with the Donovan Commission Company. (b) Defendant should have been permitted on cross-examination of Minor to show that it was only necessary for defendant to keep on deposit with the commission company a sufficient amount of money to keep the deal in question alive. (9) Defendant's evidence as to his intent was admissible upon the issue of intentional conversion. State v. Palmer, 88 Mo. 573. (10) So also was his evidence as to his intent in leaving town upon the issue of whether or not he fled from justice. State v. Mallon, 75 Mo. 355. (11) The transaction was a simon pure gambling contract under which no agency could exist and upon which no liability on the part of defendant, either of a civil or criminal character could be predicated. Jameson v. Wallace, 59 Am. St. Rep. 302; Pearce v. Foote, 113 Ill. 238; Cannon v. Black, 119 Mo. 126; State v. Gritzman, 134 Mo. 512; State v. Williamson, 118 Mo. 146; Negley v. Devlin, 12 Abb. Prac. N. S. 210; Buck v. Albee, 26 Vt. 184; Lemon v. Grosskopf, 22 Wis. 447; Society v. Lester, 63 N.W. 977; Seamans v. Temple, 63 N.W. 408; Seamans v. Oliver, 22 N.E. 503; Roselle v. Beckemeir, 134 Mo. 380; Roselle v. Farmers Bank, 141 Mo. 36. (12) The court erred in instructing the jury as requested by the State. (a) The general instruction number 1 given for the State, is erroneous, in that it fails to submit to the jury the issue as to whether the defendant was over the age of sixteen years. (b) It is also erroneous in that it fails to submit the question of a felonious intent to deprive the defendant of his property or to convert it to defendant's own use. State v. Pratt, 98 Mo. 102; State v. Jennings, 98 Mo. 493; State v. Adams, 108 Mo. 208; State v. Thompson, 144 Mo. 314.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Where there is but a memorandum of a contract, and it does not purport to be a complete expression of the entire contract, or where a part only of a contract is reduced to writing, the matter omitted may be supplied by parol evidence. Life Ass'n v. Cravens, 60 Mo. 389; State ex rel. v. Hoshow, 98 Mo. 358; Beck v. Beck, 43 Mo. 266; O'Neil v. Crain, 67 Mo. 250; Rollins v. Claybrook, 22 Mo. 407; Moss v. Green, 41 Mo. 467; Lash v. Parlin, 78 Mo. 392. (2) The demurrer to the evidence was properly overruled. The evidence shows every essential element to constitute embezzlement. To constitute embezzlement under the indictment in this case and the statute upon which it was bottomed the case is made out upon proving the following five provisions: First. -- That the defendant was the agent of McLemore. Second. -- That the defendant was over sixteen years of age. Third. -- That he received the money belonging to his principal, McLemore, on account of said McLemore. Fourth. -- That he received it by virtue of his employment. Fifth. -- That he converted it to his own use with the intent to deprive the owner of it without the consent of his principal, McLemore. All of the above constituent elements are conclusively shown by the evidence introduced on the part of the State and as the weight of testimony was a question solely for the jury it became the plain duty of the court to overrule the demurrer. (3) The fact that the money is illegally received, or received under an illegal employment, will not render the embezzlement thereof any the less punishable. Com. v. Cooper, 130 Mass. 285; State v. Tumey, 81 Ind. 559; State v. Shadd, 80 Mo. 362; McClain's Crim. Law, sec. 635. (4) It is also contended that instruction No. 1 is erroneous in that it fails to submit the question of a felonious intent to deprive McLemore of his property or to convert it to defendant's own use. The cases cited by appellant on this proposition are not in point for the reason that the questions involved in them were to the effect that the instruction should require the jury to find that the defendant appropriated the money to his own use with the fraudulent intent, or for the reason of permanently depriving the owner of the use thereof. In those cases it was held to be unnecessary to charge the jury that the conversion should be done fraudulently or with a fraudulent intent. From the statute it will be noticed that the only intent required is that the defendant shall intend to convert the property to his own use without the assent of his principal. This is properly shown by the use of the word "unlawfully" in the instruction, it being unnecessary to employ the word "fraudulent." State v. Adams, 108 Mo. 214.
Defendant was convicted in the criminal court of Greene county for embezzling two hundred and fifty dollars, the money of one R. F. McLemore, of whom he was alleged to have been the agent at the time of the embezzlement, and his punishment fixed at two years imprisonment in the penitentiary. He appeals.
At the time of the commission of the alleged offense and for sometime prior thereto the defendant was, by occupation, a telegraph operator and lived at Springfield, Missouri. About the middle of November, 1898, he became the correspondent of the Donovan Commission Company, a firm engaged in the commission business in the city of St. Louis. His business was that of receiving margins or advance payments on wheat, corn and other farm products for future delivery, and placing them with said commission company.
On the 18th day of January, 1899, R. F. McLemore, who lived some distance from Springfield, went to defendant's place of business in that city and directed him to buy for him (McLemore) five thousand bushels of wheat from Donovan Commission Company, St. Louis, Missouri, and gave him as his agent $ 250 to send them as a margin to protect the trade, the wheat to be delivered to McLemore, at his option at any time before the 31st day of May, 1899, and at the same time defendant signed and handed to him the following memorandum.
5 May Wht. Chicago.
at 70 3-8 Stop loss option.
Deposits. Com. 8.
The defendant agreed with him to make the order and transmit the money to said commission company. Instead of this defendant wired an order to the commission company for one thousand bushels of May wheat and remitted to the company the sum of ten dollars. That same evening defendant left Springfield, and went to Memphis, Tenn., and circumstances in evidence tended to show, took with him the balance of the money, to-wit, two hundred and forty dollars. From Memphis he went to St. Louis where he was arrested about three weeks thereafter, and returned to Springfield.
The defense is that defendant was not the agent of McLemore, but that McLemore purchased five thousand bushels of May wheat from him direct, and relied solely...
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