The State v. Julin
| Decision Date | 18 February 1922 |
| Parties | THE STATE v. HARRY JULIN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.
Affirmed.
W Blodgett Priest and Edward W. Foristel for appellant.
(1) The first instruction given and read by the court to the jury is erroneous, improper, misleading and prejudicial to this defendant. (a) It should have required the jury to find from the evidence that this defendant did commit the crime as charged in the indictment on the day named therein instead of permitting them to base their verdict of conviction upon other crime or crimes not charged in the indictment. State v. Wissing, 187 Mo. 96. (b) Where an instruction attempts to cover the whole case it must incorporate all of the elements of the crime as charged in the indictment. State v. Lentz, 184 Mo. 223; State v. Pate, 268 Mo. 431. (c) It fails to adequately instruct the jury upon the punishment that they might assess in case they should find the defendant guilty in that it fails to instruct them upon the minimum punishment. R. S. 1919, secs. 3313, 3327, 3698; State v. Cunningham, 154 Mo. 161; State v. Schilb, 159 Mo. 130; State v. Obuchon, 159 Mo. 256; State v. Lentz, 184 Mo. 223; State v. Wissing, 187 Mo. 96; State v. Sands, 77 Mo. 118; State v. McNally, 87 Mo. 644; State v. Milliken, 170 Mo. 215; State v. Fair, 177 S.W. 473; State v. Gifford, 186 S.W. 1058. (2) The State should have been required, on proper motion by the defendant, to elect upon what particular item or items of embezzlement it would proceed and ask a conviction. State v. McCauley, 180 S.W. 869; State v. Pratt, 98 Mo. 490; State v. Noland, 111 Mo. 504; State v. Wise, 186 Mo. 42; State v. Wissing, 187 Mo. 105; State v. Shour, 196 Mo. 214; State v. Gebhardt, 219 Mo. 715. (3) The form of verdict was erroneous and should not have been received by the court, because it followed the indictment. State v. McCauley, 180 S.W. 869; State v. Pratt, 98 Mo. 490; State v. Noland, 111 Mo. 504; State v. Wise, 186 Mo. 42; State v. Wissing, 187 Mo. 105; State v. Shour, 196 Mo. 214; State v. Gebhardt, 219 Mo. 715. (4) The court should have granted the defendant a continuance for a reasonable length of time in order to meet the new testimony offered when the State surprised the defendant by calling to the witness stand to testify two witnesses whose names were not indorsed on the indictment. R. S. 1919, sec. 3839; State v. Steifel, 106 Mo. 129; State v. Johnson, 118 Mo. 491; State v. Shreve, 137 Mo. 1; State v. Myers, 198 Mo. 242; State v. Barrington, 198 Mo. 235; State v. Jeffries, 210 Mo. 302; State v. Lawson, 239 Mo. 591; State v. Conway, 241 Mo. 271; State v. Brown, 145 S.W. 1180; State v. Robinson, 172 S.W. 598. (5) Where in any case there is an alternative or discretion in regard to the kind or extent of punishment to be inflicted it is the province of the jury properly instructed to assess the punishment in their verdict and the court's duty to render judgment and pronounce sentence according to such verdict. R. S. 1919, sec. 4047; State v. Chissel, 245 Mo. 549. There is an exception noted in the foregoing section and it refers specifically to the three next succeeding sections. R. S. 1919, sec. 4047. Where a jury properly instructed finds a verdict of guilty and fails to agree on the punishment to be inflicted or do not declare such punishment by their verdict, or assess a punishment not authorized by law the court shall assess and declare the punishment. R. S. 1919, sec. 4048; State v. Fooxe, 7 Mo. 502; State v. Gilbreath, 130 Mo. 500. Where a jury properly instructed assesses a punishment lower than that prescribed by law as punishment for the offense, or greater than that prescribed by law as punishment for the offense, the trial court may, in the former case assess the punishment according to the lowest limit prescribed by law, and in the latter the court may disregard the excess and assess the greatest punishment prescribed by law for the punishment of the offense. R. S. 1919, secs. 4049, 4050; State v. Britton, 183 S.W. 295. (6) If Sections 4049 and 4050 are not limited in their scope giving the trial court power only in those cases to correct the punishment assessed by the jury when the jury are properly instructed and assess a punishment in violation of these instructions, then the sections are, and the action of the trial court in this case in raising the punishment from one to two years under provisions of Section 4049, is a violation of the constitutional rights of this defendant. Mo. Constitution, sec. 22, art. 2; sec. 28, art. 2; sec. 30, art. 2; U. S. Constitution, Arts. 5 and 6 of Amendments.
Jesse W. Barrett, Attorney-General, and Robert J. Smith, Assistant Attorney-General, for respondent.
(1) The first instruction given by the court is proper and in approved form. Secs. 3313, 3327, R. S. 1919; State v. Rose, 178 Mo. 32. (a) The jury should not have been instructed to find that the offense was committed on the day named in the indictment, but was properly instructed to consider the acts of embezzlement which occurred within three years prior to the date of the filing of the indictment. State v. Gebhardt, 219 Mo. 715; State v. Shour, 196 Mo. 214; State v. Pratt, 98 Mo. 491; State v. Wise, 186 Mo. 42; State v. Wissing, 187 Mo. 96; State v. Blakemore, 226 Mo. 566. (b) The first instruction follows the indictment, incorporating all of the elements. (c) The instruction sufficiently informed the jury as to the punishment as fixed by the statute. Secs. 3313, 3327, R. S. 1919; State v. Rose, 178 Mo. 31. (2) The State should not have been required to elect upon which particular item or items of embezzlement it would proceed and ask a conviction. The court properly permitted evidence of acts on dates occurring within three years prior to the filing of the indictment. State v. Gebhardt, 219 Mo. 715; State v. Shour, 196 Mo. 214; State v. Pratt, 98 Mo. 491; State v. Wise, 186 Mo. 42; State v. Wissing, 187 Mo. 96; State v. Blakemore, 226 Mo. 566. (3) The verdict is in proper form. Where the indictment only charges one offense, as in this case, after dismissing the first count, a general verdict finding the defendant guilty and assessing his punishment is sufficent. State v. Bishop, 231 Mo. 415; State v. Martin, 230 Mo. 691; State v. Stark, 202 Mo. 220; State v. Steptoe, 65 Mo. 643. (4) The court did not err in permitting the names of the witnesses to be endorsed on the indictment. State v. Stegner, 276 Mo. 438; State v. Barrington, 198 Mo. 66; State v. Jeffries, 210 Mo. 322; State v. Rasco, 239 Mo. 553. The question is not properly before this court for review. The record does not disclose that there was any motion to quash the indictment upon the ground that the witnesses were not endorsed upon the indictment at the beginning of the trial. State v. Wilson, 223 Mo. 186; State v. Johnson, 118 Mo. 500; State v. Barrington, 198 Mo. 66. (5) Where a jury assess a punishment not authorized by law, the court shall assess and declare the punishment. Sec. 4048, R. S. 1919. If a jury assess a punishment below the limit prescribed by law for the offense for which the defendant is convicted the court shall pronounce sentence and render judgment in accordance with the lowest limit. Section 4049, R. S. 1919; State v. Sears, 86 Mo. 169; State v. Dalton, 106 Mo. 463.
REEVES, C. Railey and White, CC., concur.
Convicted on a charge of embezzlement, appellant has duly prosecuted his appeal to this court. The charge was by indictment returned by the grand jury of the city of St. Louis, and was in two counts; one for larceny and the other for embezzlement. At the close of the State's evidence the larceny charge was dismissed, and the case was submitted to the jury on the charge of embezzlement. The jury returned a general verdict reciting that:
"We . . . find the defendant guilty of embezzlement as charged in the second count of the indictment, and assess the punishment at imprisonment in the penitentiary for one year."
Upon this verdict, after unsuccessful motion for a new trial and in arrest of judgment, the court sentenced the defendant for a period of two years in the penitentiary.
Appellant was one of the conductors of the United Railways Company of the city of St. Louis, and Rolla Wells was the receiver of that company. As such conductor, it was the duty of appellant, among other things, to require the passengers to deposit the proper fare in a box, provided for that purpose, and in the event that such passengers did not have the exact change, it was his duty to furnish them such change. For the purpose of facilitating the company's business, it provided for its passengers certain mental pieces, called tokens, which pieces or tokens each equalled one fare and could be deposited by the passengers in lieu of cash. The testimony tended to show that appellant was not only instructed not to receive the fares to be deposited in the box, but that there was a printed rule displayed on the platform of his car, always visible to passengers, instructing them to deposit their fares in the box, as the conductor was forbidden to receive them for deposit, except when unavoidable.
Much testimony was offered showing that on numerous trips appellant had received fares in violation of this rule, and had failed to deposit such fares in this box. This testimony covered various dates from April 4, 1919, to November 10th of the same year, and specified in great detail the number of fares collected and not deposited by appellant. It was also in evidence that appellant had taken money from the fare box. In numerous conversations with his associates appellant had admitted that from the time he "broke...
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