The State v. Patterson

• Decision Date: 18 December 1900
• Parties: THE STATE v. PATTERSON, Appellant
• Court: Missouri Supreme Court

59 S.W. 1104

159 Mo. 98

THE STATE v. PATTERSON, Appellant

Supreme Court of Missouri, Second Division

December 18, 1900

Appeal from Stoddard Circuit Court. -- Hon. Frank R. Dearing Special Judge.

Reversed and remanded.

Geo Houck and Ralph Wammack for appellant.

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

(1) The omission was without prejudice to appellant. Any firm or corporation is known and referred to by its firm or corporate style. It could make no difference to the appellant whether the Adler-Goldman Commission Company was a corporation or a co-partnership composed of one Adler and one Goldman. Defendant was apprised of the name of the firm, whose money he was charged with embezzling, and it was not material to him whether it was a corporation or a co-partnership. In our daily business we carry on correspondence with firms, and deal with them in other ways, addressing them by their firm names, and in many cases we do not know nor do we ask or care whether the same are partnerships or corporations. State v. Mohr, 68 Mo. 305. Even if the indictment had described the money as belonging to some person unknown, it would have been good. State v. Martin, 28 Mo. 530; State v. Cortell, 53 Mo. 124. The question as to the strict title to the property is immaterial. State v Moore, 61 Mo. 276; State v. Barker, 64 Mo. 282; State v. Flint, 62 Mo. 393; State v. Clarkson, 59 Mo. 149; State v. Martin, 28 Mo. 530; State v. Porter. 26 Mo. 201; State v. Scott, 48 Mo. 422; Hobb v. State, 9 Mo. 855; McDonald v. State, 8 Mo. 283. (2) The indictment alleges that defendant received the money by virtue of his office, and it is not necessary for it to allege from whom he received the money. State v. Flint, 62 Mo. 393; State v. Hays, 78 Mo. 600; State v. Noland, 111 Mo. 473.

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

OPINION

BURGESS, J.

The defendant was indicted in the circuit court of Stoddard county under section 3555, Revised Statutes 1889, for embezzling moneys which came into his possession by virtue of his office as sheriff of said county.

Defendant filed motion to quash the indictment upon various grounds assigned in the motion. The motion was overruled and he saved his exceptions. Upon trial he was found guilty by the jury, and his punishment fixed at two years' imprisonment in the penitentiary. He thereafter in due time filed motions for new trial and in arrest, which were overruled. He appeals.

While it is well settled that the power to quash an indictment is a discretionary one, and that the Supreme Court will not in any case of felony reverse a judgment of conviction, because the court below refused to quash the indictment under which the conviction was had, its sufficiency may be raised by demurrer or a motion in arrest. [State v. Rector, 11 Mo. 28; State v. Conrad, 21 Mo. 271; State v. Lichliter, 95 Mo. 402, 8 S.W. 720.]

The motion in arrest is leveled at the indictment which defendant insists is fatally defective, upon various grounds. It must be conceded that the indictment is very inartistically drawn but most of the objections which are urged against it seem to us to be either too technical to render it invalid, or, are not borne out by the record.

But an objection is made to it upon the ground that it does not allege that the Adler-Goldman Commission Company, whose moneys defendant is charged with embezzling, was either a corporation or co-partnership, and the question is, was it necessary to do so, in order to make a good indictment?

The indictment alleges that defendant was "sheriff of the county of Stoddard, and by virtue of his office as such sheriff was then and there intrusted with the collection of three hundred and ninety dollars of lawful money of the United States, and being so intrusted and having charge and custody of said money belonging to and being the property of Adler-Goldman Commission Company and being so intrusted with and having the care, custody and control as aforesaid of the said three hundred and ninety dollars of the value of three hundred and ninety dollars the denomination of said moneys being to these jurors unknown, and, therefore can not be given, of the money belonging to the said Adler-Goldman Commission Company by him received and taken into his possession and custody by virtue of his said office as sheriff to pay and deliver to said ...