The State v. Rigall

• Decision Date: 27 October 1902
• Citation: 70 S.W. 150,169 Mo. 659
• Parties: THE STATE v. RIGALL, Appellant
• Court: Missouri Supreme Court

70 S.W. 150

169 Mo. 659

THE STATE v. RIGALL, Appellant

Supreme Court of Missouri, Second Division

October 27, 1902

Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.

Reversed and remanded.

T. B Haughawout for appellant.

(1) The court erred in not requiring the State to elect upon which transaction it would ask the jury to convict They were separate and distinct transactions. The two hundred dollars was given by the prosecuting witness in Illinois. The eight hundred dollars was sent to the prosecuting witness's son at Joplin, Missouri, and by him delivered to the defendant. There was but one count in the indictment, and there being separate and distinct transactions one of which defendant claimed had been fully settled, and when defendant claimed he had delivered all the remaining money back to the prosecuting witness's son, it is impossible for the defendant to determine upon which transaction he was convicted. (2) The principal point we urge, and which we claim is decisive in this case, is that the failure of the court to instruct the jury as to the fraudulent and felonious intent of the defendant in converting the money is reversible error. State v. Cunningham, 54 Mo. 161; State v. Schilb 159 Mo. 130.

Edward C. Crow, Attorney-General, for the State.

The instruction, it will be observed, does not specifically require the jury to find any fraudulent intent on the part of the defendant in converting the money of Mrs. Leftcovich to his own use. Under the decision in State v. Schilb, 159 Mo. 140, it would seem that it is necessary that the instruction in an embezzlement case specifically require the jury to find a fraudulent intent on the part of the defendant in converting the money or property alleged to be embezzled.

OPINION

BURGESS, J.

From a conviction in the circuit court of Jasper county, under an indictment charging him with the embezzlement of seven hundred and fifty dollars, the moneys of one C. M Leftcovich, and fixing his punishment at two years' imprisonment in the state penitentiary, defendant, after an unavailing motion for a new trial, appeals.

It appeared from the evidence that there were two or three different moneyed transactions between Mrs. Leftcovich and defendant before the finding of the indictment against him, by which her moneys passed into his hands, and the record shows that after the evidence was all in, but before the case was submitted to the jury, defendant filed his motion to require the State to elect upon which one of these transactions it would elect to proceed. The motion was overruled, but defendant did not properly save an exception to that ruling. It is true, it does appear from the record that defendant saved his exception at the time, but it does not so appear from the bill of exceptions, and being a matter of exception, could only become a part of the record by bill of exceptions, and the entry by the clerk upon his minutes that defendant "excepted and saves his exceptions," was of no significance whatever. [State v. Marshall, 36 Mo. 400.] There is a manifest difference under our statutes between what is properly matter of error and exception. In Bateson v. Clark, 37 Mo. 31, it is said: "By the Revised Code of 1855, p. 1300, sec. 33 [sec. 864, R. S. 1899], no exception shall be taken in appeal or writ of error to any proceeding in the circuit court, except such as shall have been expressly decided by such court; but section 35 of the same chapter [sec. 866, R. S. 1899], requires this court to examine the record and award a new trial, to reverse or affirm the judgment, or to give the proper judgment as may seem agreeable to law. The record proper, by law, is the petition, summons, and all subsequent pleadings, including the verdict and judgment; and these the law has made it our duty to examine and revise; and if any error is apparent on the face of these pleadings which constitute the record, we will reverse the cause, whether any exceptions were taken or not. Exception is matter which arises wholly from the action of the court in the progress of the trial, as the admission or rejection of evidence, the sustaining or overruling some motion, the giving or refusing instructions, etc. This is strictly no part of the record unless made so by being incorporated in a bill of exceptions, and to entitle it to any notice or to be made available here, the action of the court must have been excepted to at the time the alleged error was committed." It follows that this point is untenable.

It is said that the court erred in failing to instruct the jury that they must believe...