The State v. Ross

• Decision Date: 06 January 1926
• Docket Number: 26571
• Citation: 279 S.W. 405,312 Mo. 490
• Parties: THE STATE v. DONALD W. ROSS, Appellant
• Court: Missouri Supreme Court

279 S.W. 405

312 Mo. 490

THE STATE v. DONALD W. ROSS, Appellant

No. 26571

Supreme Court of Missouri

January 6, 1926

Appeal from St. Louis City Circuit Court; Hon. John W Calhoun, Judge.

Affirmed.

Bass & Bass for appellant; Cosgrove & Doyle of counsel.

(1) These laws being relative to public officers, whose powers are prescribed by public law, this court will take judicial cognizance that they do not make a trustee of the Commissioner of Finance or his agents, deputies or special deputies for and on behalf of a bank that has been taken possession of and is in charge of the said officers under said laws or by virtue thereof. State v. White, 263 S.W. 192; State v. Higgins, 124 Mo. 649; State ex rel. Clark v. Gates, 67 Mo. 142; Secs. 11673 to 11726, R. S. 1919, Laws 1921, p. 393. (a) No trustee existed as alleged and set out in the indictment, neither by virtue of the Constitution of this State nor any law thereof. No "trustee" came into being for and on behalf of the Night & Day Bank under and by virtue of the laws that created and defined the powers and duties of the Finance Commissioner, his agents, deputies or special deputy finance commissioners. Sec. 3334, R. S. 1919; State v. Hall, 126 Mo. 585; State v. Cleveland, 80 Mo. 108; Hamuel v. State, 5 Mo. 564; People v Shearer, 143 Cal. 66; State v. Hubbard, 58 Kan 797. (b) The indictment charges that the accused "did then and there receive and take into his possession and have under his care and control as trustee for and on behalf of the Night & Day Bank" the money alleged to have been feloniously embezzled and converted. It should, in the language of the statute on which the indictment is based, have been distinctly charged that the defendant did then and there receive and take into his possession and have under his care and control as trustee the money in question, and that it came to him "by virtue of the trust reposed in him." "No indictment is good without such allegation." State v. Harmon, 106 Mo. 655; Clark's Crim. Law, p. 274; Tipton v. State, 53 Fla. 69; 2 Bishop Criminal Law (Ed. 1923) sec. 352; State v. Zingher, 302 Mo. 650; Sec. 3334, R. S. 1919. (2) It was prejudicial error to permit the State, after the jury had been selected and sworn, to endorse upon the indictment herein the names of six new witnesses and to refuse defendant's request for a continuance or resetting of the case so as to enable him to prepare to meet the testimony of the new witnesses. State v. Pearson, 270 S.W. 349. (3) The defendant's motion in the nature of a demurrer should have been given. (a) Because the State failed to prove as alleged the venue of the alleged offense as being at the city of St. Louis. The venue of the offense was at Kansas City. State v. Bouslog, 266 Mo. 73; State v. Mispagel, 207 Mo. 557; State v. Bacon, 170 Mo. 161. (b) Because the State failed to prove in any manner or form as alleged that the Night & Day Bank was a duly incorporated banking institution organized and existing under and by virtue of the laws of the State of Missouri as alleged. (c) Because the State failed to prove that the appellant was a trustee, either in fact or in law, or that he received and took into his position and had under his care and control as trustee the money alleged to have been embezzled, or that he embezzled said money as a trustee for and on behalf of the Night & Day Bank; or that there was any fiduciary relation between appellant and the Night & Day Bank, or that there was any money that came to appellant by virtue of the trust reposed in him by the Night & Day Bank. State v. Zingher, 302 Mo. 659; Kelly's Criminal Law (3 Ed.) sec. 241; State v. Brown, 171 Mo. 480.

Robert W. Otto, Attorney-General, and W. F. Frank, Assistant Attorney-General, for respondent.

(1) The indictment properly charges the crime of embezzlement. Sec. 3334, R. S. 1919; State v. Clarkson, 59 Mo. 149; State v. Larew, 191 Mo. 192; State v. Moreaux, 254 Mo. 398; State v. Julin, 292 Mo. 270. (2) The evidence sufficiently supports the charge. State v. Laughlin, 180 Mo. 342; State v. McCawley, 180 S.W. 871; State v. Martin, 230 Mo. 680; State v. Meininger, 268 S.W. 79. (3) There was no variance between the indictment and proof. State v. Meininger, 268 S.W. 79; State v. Martin, 230 Mo. 699. (4) Instruction numbered one properly declares the law of the case. State v. Noland, 111 Mo. 473; State v. Meininger, 268 S.W. 78.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

After reading the record and briefs of counsel, we have reached the conclusion that the statement made by counsel for respondent as to the State's case is substantially correct and we hereby adopt the same as follows:

Appellant was charged in an indictment containing two counts, returned into the Circuit Court of the City of St. Louis on the second day of June, 1923, with the embezzlement of $ 28,250, moneys of the Night & Day Bank. He was tried before a jury in said court and on December 5, 1923, was found guilty of embezzlement as charged in the first count of the indictment and his punishment assessed at five years' imprisonment in the State Penitentiary. Judgment and sentence were rendered in conformity with the verdict, from which an appeal was taken to this court.

The State's evidence shows that the Night & Day Bank was a banking institution and doing a general banking business in the city of St. Louis, prior to January, 1922. At this time it was taken over by the Finance Department of the State of Missouri. The appellant was appointed Special Deputy Commissioner of Finance, and as such was placed in charge of the business affairs and property of the Night & Day Bank and authorized to collect all debts due the bank, convert the assets into cash and otherwise look after and care for the liquidation of said bank. He was in possession of the business and property of this bank from the date of his appointment as Special Deputy Commissioner until February, 1923, and during this time was engaged in liquidating the affairs of said bank. The Commissioner of Finance selected the Liberty Central Trust Company of St. Louis as a depository for the funds of the Night & Day Bank during the time it was in liquidation. Appellant kept two accounts with the Liberty Central Trust Company, one his individual account, the other an account styled "Donald W. Ross, Special Deputy Commissioner of Finance in charge of the Night & Day Bank."

On the 14th day of November, 1922, appellant entered into a written option or agreement with one Z. T. Briggs for the purchase of five hundred and ten shares of stock in the West Side State Bank of Kansas City, Missouri, agreeing to pay therefor the sum of seventy-five dollars per share. This contract provided that this purchase should be consummated within seventy-two hours from its date. Appellant withdrew from the funds of the Night & Day Bank on deposit in the Liberty Central Trust Company in the city of St. Louis, the sum of $ 28,250, and delivered it to Z. T. Briggs as part payment on the five hundred and ten shares of stock in the West Side State Bank of Kansas City purchased by appellant from Z. T. Briggs. Appellant drew a check payable to himself in the sum of $ 28,250 against the funds of the Night & Day Bank on deposit in the Liberty Central Trust Company, presented this check to the First National Bank of St. Louis and requested said bank to issue to him a cashier's check in the sum of $ 28,250. The First National Bank presented this check to the Liberty Central Trust Company and received in return therefor a cashier's check payable to the order of the First National Bank in the sum of $ 28,250. The First National Bank then issued cashier's check in favor of D. W. Ross, Special Deputy, for the sum of $ 28,250. Appellant took this check and went away. Shortly thereafter, he returned to the First National Bank and requested that the cashier's check be re-issued in favor of the Western Union Telegraph Company, which was done by the First National Bank. At the time appellant received the cashier's check from the First National Bank, he stated to Mr. Henderson, assistant manager of said bank, that the Night & Day Bank held a second mortgage on a farm located near St. Joseph, and it was necessary, in order to protect this second mortgage, to have this money in form of a cashier's check. The check written by Ross in the sum of $ 28,250 against the funds of the Night & Day Bank was cashed by the Liberty Central Trust Company and charged to the account of D. W. Ross, Special Deputy Commissioner. After appellant received the cashier's check payable to the Western Union Telegraph Company, as above stated, he delivered this check to the Western Union Telegraph Company, and upon receipt of said check the telegraph company immediately forwarded by wire the sum of $ 28,250 to Kansas City, Missouri. The contract entered into between appellant and Z. T. Briggs provided for the purchase of certain bank stock by appellant as heretofore stated. This contract was held in escrow by a Mr. Dillon, Secretary of the Commerce Trust Company of Kansas City, Missouri. Mr. Dillon identified Exhibit V as a check he received from the Western Union Telegraph Company and Exhibit VI as a receipt delivered to the Western Union Telegraph Company at the time he received Exhibit V from said company. He further testified that the indorsement on the back of the check marked Exhibit V is his handwriting and is his signature, and that he delivered this check to Z. T. Briggs. Mr. Dillon also testified that at the time he delivered the check to Mr. Briggs, he delivered stock of the West Side State Bank of Kansas City to Mr. Ross; that he received the stock from Z. T. Briggs prior to the time he delivered it to Ross.

Appellant admits that he drew the $...