The State v. Davis

• Citation: 292 S.W. 430,315 Mo. 1285
• Decision Date: 20 December 1926
• Docket Number: 27478
• Parties: The State v. R. Lee Davis, Appellant
• Court: United States State Supreme Court of Missouri

292 S.W. 430

315 Mo. 1285

The State v. R. Lee Davis, Appellant

No. 27478

Supreme Court of Missouri

December 20, 1926

Appeal from Jackson Circuit Court; Hon. Nelson E. Johnson Judge.

Reversed.

H E. Colvin, Clarence Wofford and Bert S Kimbrell for appellant.

(1) The court erred in refusing to instruct the jury at the close of all the evidence in the case to find the defendant not guilty: (a) There was no evidence that a crime had been committed. 1 Wharton's Criminal Evidence (10 Ed.) sec. 323-b, p. 630; State v. Bass, 251 Mo. 126; State v. Peck, 299 Mo. 454. (b) There was no evidence of the conversion of any money of the bank by Davis. State v. Britt, 278 Mo. 510; State v. Fowler, 265 Mo. 190; State v. Martin, 204 S.W. 537. (c) There was no evidence of criminal intent on the part of Davis. State v. Hurley, 19 A. L. R. 297. (d) If it be conceded that the embezzlement of money of the bank were shown by the evidence, such embezzlement might have been committed by any one of four persons who handled the money of the bank. (e) The evidence was purely circumstantial and does not exclude every hypothesis except that of guilt. State v. Bowman, 294 Mo. 245, 266; State v. Staats, 296 Mo. 43; State v. Singleton, 294 Mo. 346; State v. Ruckman, 253 Mo. 487; State v. Gordon, 199 Mo. 561. (f) Surmise, suspicion, conjecture, or prejudice does not amount to substantial evidence. State v. Rutledge, 304 Mo. 32; State v. Tracy, 284 Mo. 619. (2) The court erred in admitting evidence of the alleged commission by appellant of other unproven acts of embezzlement. Such evidence was inadmissible for any purpose, and was extremely prejudicial. State v. Meininger, 306 Mo. 693; State v. Wilson, 223 Mo. 168; State v. Turley, 142 Mo. 411; Heinbach v. Heinbach, 274 Mo. 325; Post v. Bailey, 254 S.W. 74; Unrein v. Oklahoma Hide Co., 295 Mo. 374; State v. Bowman, 278 Mo. 498.

North T. Gentry, Attorney-General and James A. Potter, Assistant Attorney-General, for respondent.

(1) The evidence was entirely sufficient to carry the case to the jury. A demurrer to the State's evidence should be given only where there is no evidence of guilt, and in passing on a demurrer to the evidence the court must assume that the State's evidence is true. The weight of the evidence is for the jury. State v. Warner, 74 Mo. 83; State v. Mann, 217 S.W. 67; State v. Pollard, 174 Mo. 607; State v. Hughes, 258 Mo. 272; State v. Jackson, 283 Mo. 24; State v. Hascall, 284 Mo. 616. (2) The court did not err in admitting testimony tending to show the defendant guilty of other embezzlements. (a) The indictment contained a blanket charge to the effect that the defendant embezzled a gross sum of money from the bank. Under this charge it was proper for the State to prove any embezzlement which occurred within three years prior to the return of the indictment which amounted to the sum of thirty dollars. State v. Noland, 111 Mo. 473. (b) Evidence showing crime or attempt to commit crime of a character like the one charged is admissible in cases where the charge is obtaining property by false pretenses, embezzlement, forgery, uttering forged notes, and receiving stolen property. The ground on which the evidence is admitted is that it tends to show the intent with which the crime charged was committed or attempted. Such evidence is especially admissible where different inferences may be drawn regarding the intent with which the act was done and the circumstances of the act may be susceptible of an indication indicating innocence. State v. Patterson, 271 Mo. 109; State v. Young, 266 Mo. 735; State v. Wilson, 223 Mo. 169; State v. Wilcox, 179 S.W. 480; State v. Foley, 247 Mo. 635; State v. Meyers, 82 Mo. 562; State v. Sherman, 264 Mo. 374; State v. Roberts, 201 Mo. 727; State v. Cox, 264 Mo. 408; State v. Donaldson, 243 Mo. 475; State v. Spray, 174 Mo. 569; State v. Flynn, 124 Mo. 482; State v. Balch, 136 Mo. 109; Underhill Crim. Ev. (3 Ed.) sec. 447. (c) Evidence tending to prove the commission of a crime similar to the one for which defendant is being tried is generally admissible for the purpose of showing criminal intent, if it shows a course of conduct wherein the defendant embezzled a number of items or articles belonging to his employer. This is especially true where, as here, the act charged is susceptible of an innocent explanation, such as: accident, mistake or poor bookkeeping. State v. Fischer, 297 Mo. 174. (d) Evidence of other crimes is generally competent to prove the specific crime, if it shows motive, intent, absence of mistake or accident, common scheme or plan or identity of the person charged. State v. Lewis, 273 Mo. 518; State v. Bersch, 276 Mo. 397.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

A grand jury of Jackson County, on July 24, 1923 returned an indictment in two counts, the first charging that the defendant, on or about October 18, 1922, stole $ 548.58 of the money of the American State Bank of Kansas City, Missouri; the second, that the defendant on that day embezzled that amount of the bank's money. On May 25, 1925, the case went to trial before a jury on a plea of not guilty. At the close of the evidence for the prosecution the charge of larceny was dismissed, and the jury returned a verdict finding the defendant guilty of embezzlement as charged in the indictment and assessed his punishment at five years' imprisonment in the penitentiary. On September 12, 1925, sentence was pronounced in accordance with the verdict and defendant appealed.

The bank was organized in 1917, and was closed by order of the Commissioner of Finance on April 30, 1923. The defendant Davis was president, C. A. Walker was vice-president and cashier, Miss Sage was assistant-cashier and Miss Farnum was bookkeeper of the bank during its continuance in business. They each received and paid out money for the bank, but Davis was out of his cage much of the time, attending to business that took him out of the bank.

In the view we take of the case a short statement will suffice. The evidence for the State shows that on October 18, 1922, Davis ordered from four dealers in bonds seventeen five per cent Swift & Co. bonds, each of the par value of $ 1000, with accrued interest. They were purchased at 96 3/4 of their par value, and at this figure their cost was $ 16,452.22. He turned them over to Mr. Walker, the cashier, with directions to charge them to the bank at $ 17,000. Accordingly this entry was made on the daily statement: "Corporation bonds, $ 17,000." They were carried on the books as assets of the bank valued at that figure. On the same day the cashier issued checks to the four dealers for the aggregate sum of $ 16,452.22 in payment of the bonds as shown by the books of the bank. The evidence does not show, nor is it contended by the State, that in the transaction Davis handled a dollar of the bank's money. As showing the theory of the State, the prosecuting attorney in his opening statement to the jury, after stating that the evidence would be as above recited, said in substance that on the day on which the bonds were purchased for $ 16,450 odd dollars and charged to the bank at $ 17,000, the defendant was not long or short in his accounts with the bank. "The evidence will show," quoting the prosecutor's statement, "that in banking transactions the $ 548 must have appeared on the books that much in order for the books of the bank to have balanced. The evidence on the part of the State will show that on that day when the bank was charged $ 17,000 for the bonds and the bank only spent $ 16,452 for the bonds, that Mr. Davis's cash at the bank checked out in the proper balance or something near a proper balance, tending to show the inevitable conclusion that at that time $ 548 was abstracted from the funds of the bank; that the bank was charged with $ 17,000 and paid out $ 16,452."

This difference or discrepancy was first called to Davis's attention after the bank was closed April 30, 1923, by Miller and West, the bank examiners, and by Mr. Blackmar, attorney for the liquidating agent. Davis stated the difference would be found in the interest account. When that account was examined and it was not found there, he said it would be found in the exchange account, but it was not found there. At this point we quote, in substance, from the statement of the Attorney-General: "Over the objection of the defendant the State was permitted to introduce evidence of other embezzlements for the purpose of throwing light upon the intent of the defendant in the commission of the particular crime charged against him."

Among the bank's assets was a note of the defendant's wife for $ 10,000, bearing six per cent interest. There were thirty or thirty-one monthly payments of interest indorsed on this note, mostly in the defendant's handwriting, continuing down to the time the bank was closed. The State's witnesses, Miller, West and Blackmar, testified the bank's books did not show that the bank received these interest payments, and when this was called to defendant's attention he paid the principal of the note with all interest from its date.

The Associated Dollar Tires Company was the bank's customer. It sold tires at wholesale; it drew drafts on its customers, deposited these, with bills of lading attached, in the bank for collection, and also delivered to the bank a check for one per cent of the amount of each draft in payment for the bank's services in handling them. The State's witnesses testified the bank records failed to show that the bank ever received any part of these commissions, aggregating several hundred dollars, and there was evidence tending to show that Davis embezzled these commission checks.

Evidence was also introduced tending to prove another embezzlement, but it is...