The State v. Lipscomb

• Decision Date: 12 February 1901
• Citation: 60 S.W. 1081,160 Mo. 125
• Parties: THE STATE v. LIPSCOMB, Appellant
• Court: Missouri Supreme Court

60 S.W. 1081

160 Mo. 125

THE STATE v. LIPSCOMB, Appellant

Supreme Court of Missouri, Second Division

February 12, 1901

Appeal from Barry Circuit Court. -- Hon. H. C. Pepper, Judge.

Affirmed.

Cloud & Davis, Davis & Steele and C. M. Landis for defendant.

(1) The indictment in this case is bad for the reason it does not state "the nature and cause of the accusation" against defendant. An accused person is presumed to be innocent of any crime charged against him, and wholly ignorant of any of the circumstances pertaining thereto. The business in which Brown & Son were engaged should have been stated in the indictment, and also that the defendant was authorized to receive money. These allegations were supposed to be inferred by the use of the term "clerk," but the term is generic in its character. Were Brown & Son lawyers or doctors as well as merchants, this indictment, if good at all, would be as sufficient for the one business as for the other. The indictment must individuate the offense. When the common law or statute defines by generic terms, the indictment must descend to particulars. Arch. Crim. Prac. and Plead., sec. 88. Even in the sense of salesman, the term clerk does not imply that the employee is entrusted with money, and authorized to receive and to account for it, nor is this averment made in the indictment under consideration. In embezzlement the master can set out particularly the relations between himself and his servant and he should be required to do so as far as it materially affects the offense or is desirable for its identification. 2 Bishop's New Crim. Proc., sec. 319. All that is to be proved must be alleged and nothing be left to intendment. 1 Bishop's New Crim. Proc., sec. 519. (2) The alleged confession of the defendant in this case is not admissible because the whole of the conversation is not given. It is inadmissible because inducements were offered. A suggestion to a prisoner that it would be better for him to tell the truth, and have no more trouble about it, was held to render the confession incompetent. Gillett, Indirect and Collateral Evidence, sec 103. Inducements were held out by Brown, and in the presence of Tomlinson, by assuring the defendant that the law would be easier on him, which assurance was made to the defendant at the post-office by Brown and in his capacity as officer and as the injured party, and for this reason was clearly inadmissible. (3) The corpus delicti in this case was not proved. The law requires open and visible connection between the principal and evidentiary facts and deductions from them and does not permit a decision to be made on remote inferences. U. S. v. Ross, 92 U.S. 281. Had Brown been able to show a deficiency in his profits, it would not have been proof of any criminal act. Some specific sum must be proved to have been embezzled, the same as in larceny some particular article must be shown to have been stolen. 2 Bishop's New Crim. Law, sec. 375; 2 Bishop's New Crim. Proc., sec. 337. (4) Instruction numbered 1 and numbered 3, given for the State are insufficient because they do not state that the jury should find that defendant was authorized to receive and to account for the money of Brown & Son. Instruction numbered 3 asked by the defendant should have been given to the jury. Sufficient testimony was elicited from witness Brown to show that he presented the hope of an indefinite favor to defendant at the post-office in Galena, and early in their conversation. Anything said after Brown told defendant that the law would be easier on him, is inadmissible. State v. Brockman, 46 Mo. 566; 1 Greenleaf on Evid., sec. 220; 1 Phillips on Evid., sec 544; Bishop's Crim. Proc., secs. 1223 and 1233.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The indictment follows the language of the statute as near as may be. The offense is created by statute and in such cases it is sufficient to follow the language of the statute in charging the crime. State v. Adams, 108 Mo. 208; State v. Mohr, 68 Mo. 303; State v. Coulter, 46 Mo. 565; State v. Johnson, 93 Mo. 319; State v. Stebbens, 132 Mo. 332. It is not essential that the indictment should charge the character of business in which Brown & Son were engaged. Too much particularizing sometimes becomes objectionable and renders the indictment bad. All that was necessary in this case, as in all others, is to inform the accused of the "nature and cause" of the offense he is called upon to answer. This is stated sufficiently clear when the allegation is set out that he was in the employ of Brown & Son, and stating the name of the persons composing the said firm of Brown & Son. It has never been considered necessary to charge the particular character of business the prosecutor is engaged in when drawing an indictment charging a person with burglary and larceny, and as it is not essential in that class of cases, it can not, for the same reason, be necessary here. We are also called upon to answer the charge that the indictment should have contained some statement showing defendant was authorized to receive money while in the employ of Brown & Son. The statute does not so require. It makes no difference whether he was or was not authorized to receive money. He was employed by Brown & Son; was over the age of sixteen years; was a clerk in the establishment of his employers and had the opportunity to handle, take and embezzle money, goods and property. It is not that he shall be authorized to receive the money which makes it essentially a crime to embezzle, but that being in such employment, he is clothed with an opportunity to take and embezzle. Besides, he is charged in the indictment with being in the service of Brown & Son as a "clerk." The indictment uses the same word as the statute. In both the statute and indictment the common, ordinary and usual meaning of the word in its generally accepted term must be considered, rather than any technical use to which it may in certain cases and under certain conditions be applied. (2) The confession shown in evidence is sufficient. Defendant is shown to have stated that he took the money and converted it to his own use. State v. Brooks, 92 Mo. 542; State v. Walker, 98 Mo. 95; State v. Miller, 49 Mo. 505. Defendant was accused of the embezzlement at the time of the arrest and before he knew there was an officer present to secure his arrest. He at once admitted the crime and said he could not help it, that it was in him to steal. It will be noticed here that even though all these words of defendant be stricken out as he seems to desire, it will nevertheless leave him standing in perfect silence to the accusation made at the time of his arrest. It has been held by this court to be so instinctively natural for one directly charged with some crime to repel the charge with an immediate and direct denial that the failure to do so is regarded as a tacit confession of guilt and as competent evidence therefor. State v. Walker, 78 Mo. 380; State v. Talmage, 107 Mo. 543. (3) Had the confession been obtained by the flattery of hope or the torture of fear it should have been excluded and error would have been committed by the introduction of statements so obtained. Such however, is not the case at bar. The confession was voluntary. State v. Meyers, 99 Mo. 107; State v. Patterson, 73 Mo. 695. (4) Instructions one and three given for the State are objected to because they fail to tell the jury that they should find defendant was authorized to receive and to account for the money embezzled by him from Brown & Son. This objection is fully answered in point one hereof. It is not necessary to make any such allegation in the indictment, nor was it for the same reason necessary to so instruct the jury. If he was the clerk as charged and obtained possession of the money and appropriated it to his own use, he is guilty of embezzlement.

BURGESS, J. Sherwood, P. J., and Gantt, J., concur.

OPINION

BURGESS, J.

Defendant was convicted at the October term, 1899, of the circuit court of Barry county, and his punishment fixed at two years' imprisonment in the State penitentiary under an indictment presented by the grand jury of said county charging him with the crime of embezzlement.

After ineffectual motions for new trial and in arrest, defendant appeals.

The indictment contained three counts, but the second and third were taken from the jury, and defendant was convicted on the first count, which charges that "On the twenty-fourth day of December, 1898, at the county of Barry, State aforesaid, one George E. Lipscomb, being then and there the clerk of a certain co-partnership of persons, to-wit, L. G. Brown and A. L. Brown, under the name style of L. G. Brown & Son, and the said George E. Lipscomb being then and there not a person under the age of sixteen years, did then and there by virtue of his said employment as clerk of the said co-partnership, to-wit, of L. G. Brown & Son, have, receive and take into his possession and under his care certain money to a large amount, to-wit, to the amount of $ 75, of the value of $ 75, of the property and moneys then and there belonging to the said co-partnership, to-wit, to the said L. G. Brown & Son, and the said George E. Lipscomb the said money then and there feloniously did embezzle and fraudulently convert to his own use without the assent of his said employers, to-wit, without the assent of the said L. G. Brown and A. L. Brown, the owners of said money, and the said George E. Lipscomb the said money in the manner and form aforesaid feloniously did steal, take and carry away, against the peace and dignity of the State."

Brown & Son had, for several years prior to the alleged crime conducted a general mercantile business...