The State v. Shour
| Decision Date | 22 May 1906 |
| Citation | 95 S.W. 405,196 Mo. 202 |
| Parties | THE STATE v. SHOUR, Appellant |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court. -- Hon. J. W. Alexander Judge.
Affirmed.
L. A Chapman and Scott J. Miller for appellant.
(1) Defendant was charged with taking a specific amount upon a specific day from an incorporated company, being charged under the general embezzlement act. It should not have been permissible to offer evidence of smaller amounts for any other reason than to characterize the taking of the specific amount set forth in the information. (2) Defendant, by the information, was charged with being a secretary of a building and loan association; he could not be prosecuted under the special statute of embezzlement, but must be prosecuted under the special statute controlling building and loan associations, which provides ample punishment. Sec 1374, R S. 1899. (3) Instruction No. 2 is specifically condemned in the case of State v. Harmon, 106 Mo. 637. (4) The verdict does not respond to the charge in the indictment. (5) The court erred in permitting Davis's testimony, he being an attorney in the case in connection with the prosecuting witness. The court should have instructed on all grades of crime, and instructions should have been given permitting the jury to find defendant guilty of a misdemeanor under the law. Sec. 1374, R. S. 1899. (6) There is no venue proved.
Herbert S. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the state; B. B. Gill & Son, and J. M. Davis & Sons of counsel.
(1) This prosecution being for embezzlement and defendant being in the continuous receipt of money belonging to the corporation, of which he was an officer, the State was entitled to show all items of defalcation occurring during the time covered by the Statute of Limitations and should not have been confined to the date and amounts set forth in the information. State v. Pratt, 98 Mo. 491; State v. Noland, 111 Mo. 501; State v. Wise, 186 Mo. 48; State v. Wissing, 187 Mo. 96. (2) Section 1374, Revised Statutes 1899, does not repeal by implication section 1912, Revised Statutes 1899, and does not provide a penalty for an officer of a corporation who, with a fraudulent intent, converts to his own use the funds of the corporation, but only provides a penalty against one who shall "use or dispose of," etc., without a fraudulent intent. Each section provides a punishment for a different offense. State v. Clarkson, 59 Mo. 152; State v. Noland, 111 Mo. 501. Section 1374 and section 1912 can be read together without contradiction or repugnancy, and when this can be done, they should be read together and effect given to both. State ex rel. v. Spencer, 164 Mo. 54. (3) Defendant having asked his instruction 7, by which the jury were told that if some person, other than defendant, took the money of the association without his knowledge and consent, they should find the defendant not guilty, the State was then entitled to the converse of this proposition, i. e., that if another took it with his knowledge and consent and with the necessary fraudulent intention on the part of defendant, they should find him guilty. State v. Rutherford, 152 Mo. 124. (4) Instruction 2, given at the request of the State, is an exact counterpart of instruction 2 in State v. Lipscomb, 160 Mo. 133. (5) There was but one count in the information. It charged the defendant with embezzlement. The verdict of the jury found the defendant guilty as charged in the information and assessed his punishment. This was sufficient. State v. Ray, 53 Mo. 345; State v. Noland, 111 Mo. 473; State v. Cook, 58 Mo. 545; State v. Walker, 24 Mo.App. 680.
This cause is here upon appeal by the defendant from a judgment of conviction in the Livingston Circuit Court at its May term, 1905, upon an information filed by the prosecuting attorney charging the defendant with the embezzlement of money belonging to the Farmer's Loan and Building Association, a corporation incorporated under the laws of the State of Missouri in 1887, and doing business in Chillicothe, Livingston county, Missouri, at the time of the trial. This prosecution and judgment is predicated upon the following information by the prosecuting attorney; omitting formal parts, it is as follows:
"Comes now Frank S. Miller, prosecuting attorney within and for the county of Livingston, State of Missouri, and informs the court on his official oath that A. P. Shour, on or about the 29th day of December, 1903, at the said county of Livingston, State of Missouri, being then and there an officer, to-wit, secretary of the Farmer's Loan and Building Association, a corporation duly incorporated, organized and having an office in the city of Chillicothe, Missouri, and doing business under and by virtue of the laws of the State of Missouri, the said A. P. Shour not being then and there a person under the age of sixteen years, did then and there by virtue of such office as secretary aforesaid, have, receive and take into possession and under his care a certain sum of money, to-wit, one hundred dollars lawful money of the United States of the value of one hundred dollars, which said money and property then and there belonged to and was the property and money of the Farmer's Loan and Building Association, and the said A. P. Shour, the said money and property, did then and there unlawfully, fraudulently and feloniously embezzle and convert to his own use without the assent of the said Farmers' Loan and Building Association, the owner of the said money and property aforesaid, and the said A. P. Shour, the money and property aforesaid, in the manner and by the means aforesaid, did unlawfully, fraudulently and feloniously steal, take and carry away, against the peace and dignity of the State."
The testimony upon the trial on the part of the State developed substantially about this state of facts: That it was the duty of the secretary, made so by the constitution of the association, to receive the monthly dues of the stockholders on their shares of stock and all other money paid to the association and pay the same over to the treasurer of the association. It had, however, been the custom of the association, through its board of directors, for a long time prior and at the time of the filing of the information in this case, to require the secretary to deposit the money collected by him from all sources in the bank with which the association kept its bank account to the credit of the Farmers' Loan and Building Association. When the money of the association was deposited with the bank it could only be paid out by order of the board of directors by a warrant drawn on the treasurer, signed by the president of the board and attested by the secretary. Under this method no officer of the association except the secretary received, collected or handled the money, belonging to the company, prior to its being deposited in the bank. The defendant had in the office for a number of years, and at the time he was charged with embezzlement, a lady who acted as his private clerk. This clerk had authority from the defendant to sign his name to receipts for money on the stockholders' pass books for monthly dues paid by them to the secretary; also to endorse checks made payable to the order of the defendant as secretary. This clerk assisted the defendant in keeping the books of the association and in making out monthly reports to the board of directors. These reports were made monthly and purported to contain a statement of all moneys collected and paid out during the current month. The clerk also assisted in making out the semiannual sworn statement required by the law to be made to the State Supervisor of Building and Loan Associations.
The board furnished the secretary an office and paid him an annual salary of $ 250. There was in the office of the secretary a large safe belonging to the association. This safe had a combination lock and on the inside was a drawer with a lock. The defendant, alone, knew the combination and carried the key to the inside drawer. In this safe the books and papers of the association were kept. The method of receiving money from stockholders for monthly dues and from other sources was practically as follows: When a stockholder brought in his pass book to pay his dues, either the defendant or his clerk would receive the money and write in the pass book the amount paid opposite the month or months paid for and opposite this credit the name of the secretary. If the stockholder did not have his book and desired to pay his monthly dues the clerk or the defendant would give a receipt to the party paying for the amount paid. The money thus received from day to day was supposed to be put in the inside drawer of the safe by the one who received it, if the safe was unlocked. In the evening of each day, if there had been any considerable amount of money paid in, it was supposed to be taken to the bank and deposited to the credit of the association. If the money received during the day was not charged against the secretary on the cash book for any reason, then a slip was supposed to be made stating the amount paid, by whom, on what account, and date. If the amount evidenced by these slips was not entered on the cash book during the day, then the clerk, if the safe was unlocked, would put the slips in the small drawer in the safe and they would remain there until the amounts were charged to the secretary on the cash book when they were destroyed. If one of these slips was lost or destroyed before the amount was charged to the secretary on the book of first entry, the cash book, then the association received no credit for that amount, nor was the secretary charged with the money. And the only...
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