The State v. Mispagel

• Decision Date: 10 December 1907
• Citation: 106 S.W. 513,207 Mo. 557
• Parties: THE STATE v. ANTON MISPAGEL, Appellant
• Court: Missouri Supreme Court

106 S.W. 513

207 Mo. 557

THE STATE v. ANTON MISPAGEL, Appellant

Supreme Court of Missouri, Second Division

December 10, 1907

Appeal from St. Charles Circuit Court. -- Hon. Jas. D. Barnett Judge.

Reversed and remanded.

Thos B. Harvey and William L. Mason for appellant.

(1) The description of the property alleged in the information to have been embezzled must be proved as laid. If the evidence showed that Mispagel embezzled anything, it was a draft, not money, as charged in the information. The variance is fatal. State v. Wissing, 187 Mo. 106; State v Crosswhite, 130 Mo. 366; State v. Dodson, 72 Mo. 283; State v. Bacon, 170 Mo. 161; State v. Kroeger, 47 Mo. 530; State v. Schilb, 159 Mo. 142; Carr v. State, 104 Ala. 43; Lancaster v. State, 9 Tex.App. 393; Rex v. Kenna, L. R. 1 C. C. 113; Carter v. State, 53 Ga. 326; People v. Leipsic, 62 P. 311; Baker v. State, 31 Ohio St. 314; Goodhue v. People, 91 Ill. 37; State v. Hanley, 170 Conn. 265; State v. Burks, 159 Mo. 568; Weiner v. People, 186 Ill. 503; Block v. State, 44 Tex. 620; Hamilton v. State, 60 Ind. 153; Com. v. Weinfield, 45 Mass. 468; Com. v. Wood, 142 Mass. 459; Queen v. Crosby, 1 Cox C. C. 10; Com. v. O'Keefe, 121 Mass. 59; Com. v. Howe, 132 Mass. 258; Bork v. People, 91 N.Y. 5; Bishop on Statutory Crimes, sec. 346; McClain's Cr. Law, sec. 652. (2) The ownership of the property alleged to have been embezzled must be proved as laid. If the American Exchange Bank, against which the draft was drawn, paid any money upon that draft, it paid its own money, not the money of the St. Charles Savings Bank. If a bank or any other person deposits money, checks or drafts in another bank, such money, checks or drafts deposited become the property of the bank in which deposited. The relation of debtor and creditor is established between the depositor and depositary. Therefore, if any money was converted by Mispagel by means of the draft offered in evidence to prove the charge, it was not the money of the St. Charles Savings Bank as charged. Utley v. Hill, 155 Mo. 259; U. S. v. Burton, 196 U.S. 283; Rouguth v. People, 186 Ill. 97; State v. Morgan, 280 Ore. 578; State v. Cooper, 102 Iowa. 146. (3) If any money was appropriated to Mispagel's use as the result of the draft offered in evidence, such money was not under his care or in his possession as charged in the information, but was in the possession and under the care of the American Exchange Bank. Therefore, since the proof must support the allegation of possession by the accused of the property charged to have been embezzled, the court should have directed an acquittal. R. S. 1899, sec. 1912; 15 Cyc. Law & Proc., 526. (4) If, under the evidence, there was any embezzlement of draft or of money, that embezzlement occurred in St. Louis. If Mispagel sent the draft to St. Louis and it was there, upon his direction, placed to his credit, the embezzlement of the draft occurred in St. Louis, and if any money was paid on said draft it was paid and converted to his use in St. Louis. The venue, therefore, should have been laid in St. Louis. State v. Bacon, 170 Mo. 161; State v. Fraker, 148 Mo. 150; State v. Gritzner, 134 Mo. 527; State v. Lichliter, 95 Mo. 402; State v. Shaeffer, 89 Mo. 271; U. S. v. Burton, 196 U.S. 283; Bates v. State, 124 Wis. 612; People v. Graham, 47 L. R. A. 736.

Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and Theodore C. Bruere for the State.

(1) The venue in this case was properly laid and proven in St. Charles county. State v. Meysenburg, 171 Mo. 1; State v. Shaeffer, 89 Mo. 271. (2) Appellant contends that the embezzlement occurred in St. Louis, where the money was received by his brokers, and not in St. Charles, where he issued the draft, and sent it by mail to St. Louis, to his broker, and where defendant formed the criminal intent to embezzle the bank's funds. As an authority for his position he cites cases in which the courts have passed on the question of jurisdiction in cases of receiving money under false pretenses. There is a broad distinction in cases of embezzlement and cases of obtaining money under false pretenses. In cases of receiving money under false pretenses, the jurisdiction lies in the forum where the money was received. In this case the defendant testified he sent the money to St. Louis; by so doing he made the postal service his agent in abstracting the money; the crime was committed in St. Charles county, where the draft was drawn and issued, and where the criminal intent was formed, and where defendant had to account to his employer. If this were otherwise, every defaulting cashier could deposit all the money of his employer in foreign lands and in foreign banks; abstract it to his heart's content by drawing it out on drafts drawn on the foreign depository and payable to himself, or to his agent or confederate; and when asked for an accounting at the forum of the bank's place of business, and when he had to account to his employer, say, "It is true, I ought to have the money misappropriated, but I cannot be held to account for the money here. I sent your money to a foreign land; it is true, I never went there myself, but I abstracted your money by means of a draft, payable to my agent or confederate in Europe, and where my said agent or confederate collected it, and you must go to Europe to hold me to account." The appellant will find no authority where this contention is upheld. Defendant's intent to embezzle was completed in St. Charles county. 2 Bish. Crim. Law, sec. 314; 1 Ib. sec. 504; 2 Bish. New Crim. Proc., sec. 326; State v. Hosher, 26 Wash. 643; State v. Bailey, 50 Oh. St. 644; Kossakowski v. People, 53 N.E. 115; McClain's Crim. Law, 650. The authorities agree that if the transaction constituting the offense extended through different counties that in which the conversion took place has not the exclusive jurisdiction. 1 Bishop on Crim. Proc., 61; 7 Ency. Pl. & Prac., 412; State v. Herger, 106 Iowa 712; State v. Merwell, 113 Iowa 369. But where the transaction extended to different counties, the jurisdiction of the county in which its act of conversion occurred is not exclusive. 7 Ency. Plead. & Prac., 412; State v. Dennis, 80 Mo. 594; State v. Lichliter, 95 Mo. 402; State v. Gritzner, 134 Mo. 512; Works on Jurisdiction, p. 470; 2 Bishop on Crim. Law, pp. 231 and 591; Kossakowski v. People, 53 N.E. 115; State v. Bailey, 50 Ohio St. 644; Cohn v. State, 20 Texas App. 244; Com. v. Parker, 165 Mass. 526; McClain on Crim. Law, 650. (3) Appellant contends that if anybody received any money as a result of the transaction, it was not the money of the St. Charles Savings Bank, and was never in Mispagel's possession or under his care, and for that reason defendant was not guilty of embezzlement. It was the duty of Mispagel to take charge of all the bank's funds. He was the custodian of the bank's funds, and these funds were under his control, and he had to account for them at St. Charles. He embezzled those funds by depositing them with the St. Louis banks, and then fraudulently drew them out and misappropriated them to his own use, and by this means there was a shortage in the cash belonging to the St. Charles bank. To say that the money he thus embezzled was not the money of the St. Charles Savings Bank, but the money of the St. Louis bank, amounts to saying that the defendant, by the means employed, could abstract all the cash of the bank and appropriate the same to his own use, and when confronted with the charge of embezzling all of the cash of the bank, he would reply: "I deposited the money I embezzled in the St. Louis bank to the St. Charles Savings Bank's credit; and when I embezzled the money, so placed to the bank's credit, I did not embezzle the money of the St. Charles Savings Bank, for it did not belong to the St. Charles Savings Bank, but to the St. Louis bank, and I am no embezzler." The technical cob-web spun by appellant would make every bank cashier embezzler immune from punishment. Defendant appointed his brokers to get the bank's money for him by means of the draft issued, and this was a conversion of the money of the bank to his own use. State v. Woodward, 171 Mo. 593.

OPINION

FOX, P. J.

Defendant was tried and convicted in the circuit court of St. Charles county, and was by said court sentenced to serve two years in the penitentiary on an information in this language:

"Theodore C. Bruere, Prosecuting Attorney within and for the county of St. Charles, in the State of Missouri, upon his oath, informs the court that Anton F. Mispagel, late of the county of St Charles aforesaid, on the 28th day of December, 1903, at the county of St. Charles aforesaid, and State aforesaid, being then and there an officer and agent, to-wit, the cashier of and for a certain incorporated company, to-wit, the St Charles Savings Bank, and the said Anton F. Mispagel being then and there not a person under the age of sixteen years, did then and there by virtue of his said employment as such officer and agent as aforesaid of the said incorporated company, have, receive and take into his possession and under his care certain money to a large amount, to-wit, to the amount of four thousand dollars, lawful money of the United States and of the value of four thousand dollars, of the property and moneys belonging to the said incorporated company, and the said Anton F. Mispagel did afterwards, the said money then and there feloniously embezzle and fraudulently and feloniously convert the same to his own use, without the assent of his employer, the said incorporated company, the owner of the said money; and so the said Anton F. Mispagel did then and there, in manner and form aforesaid, the said money, of the property of the said incorporated company,...